# Friends of Georges, Inc. v. Steven J. Mulroy, in his official and individual capacity

> District Court, W.D. Tennessee · June 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10441382

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** June 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10441382

## How later opinions describe it (automated extraction)

- observing that the United States Supreme Court has “traditionally viewed vagueness and overbreadth as logically related and similar doctrines

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

FRIENDS OF GEORGES, INC., )
)
Plaintiff, )
) No. 2:23-cv-02163-TLP-tmp
v. )
)
STEVEN J. MULROY, in his official and )
individual capacity as District Attorney )
General of Shelby County, TN, )
)
Defendant. )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Freedom of speech is not just about speech. It is also about the right to debate with
fellow citizens on self-government,1 to discover the truth in the marketplace of ideas,2 to express
one’s identity,3 and to realize self-fulfillment in a free society.4 That freedom is of first
importance to many Americans such that the United States Supreme Court has relaxed
procedural requirements for citizens to vindicate their right to freedom of speech,5 while making
it harder6 for the government to regulate it. This case is about one such regulation.

1 See N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (establishing a heightened standard to find
defamation because the government may not chill criticism of public figures).
2 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]hat the
best test of truth is the power of the thought to get itself accepted in the competition of the
market.”).
3 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding that refusing to salute the
American flag is a protected right to express dissent as a form of autonomy and self-expression).
4 Procunier v. Martinez, 416 U.S. 396, 427 (Marshall, J., concurring).
5 Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
6 Reno v. ACLU, 521 U.S. 844, 874 (1997); Ashcroft v. ACLU, 535 U.S. 564, 573 (2002); see
also Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 794 (2011).
The Tennessee General Assembly enacted a statute criminalizing the performance of
“adult cabaret entertainment” in “any location where the adult cabaret entertainment could be
viewed by a person who is not an adult.” (ECF No. 19-1 at PageID 93.) Plaintiff Friends of
George’s, Inc. sued under 42 U.S.C. § 1983 to enjoin enforcement7 of that statute, alleging that it

is an unconstitutional restriction on free speech under the First Amendment, as incorporated to
the states by the Fourteenth Amendment of the United States Constitution. After a hearing, the
Court issued a temporary restraining order that enjoined enforcement of the statute in Tennessee.
(ECF No. 26.) The Court and Parties later agreed to consolidate the preliminary injunction
hearing and the trial on the merits under Federal Rule of Civil Procedure 65(a)(2). (ECF No.
30.) The Parties exchanged briefs and the Court held a bench trial on May 22–23, 2023.
After considering the briefs and evidence presented at trial, the Court finds that—despite
Tennessee’s compelling interest in protecting the psychological and physical wellbeing of
children—the Adult Entertainment Act (“AEA”) is an UNCONSTITUTIONAL restriction on
the freedom of speech and PERMANENTLY ENJOINS Defendant Steven Mulroy from
enforcing the unconstitutional statute.8

7 Plaintiff first sued the State of Tennessee, Governor Bill Lee in his official and individual
capacity, Attorney General Jonathan Skrmetti in his official and individual capacity, and Shelby
County District Attorney General Steven Mulroy in his official and individual capacity. (ECF
No. 1, 31.) Plaintiff, after conferring with Defendants, voluntarily moved to dismiss the parties
other than Defendant Shelby County District Attorney General Steven J. Mulroy in his official
and individual capacities. (ECF No. 60.)
8 The Court took Defendant’s motion to dismiss under advisement. (ECF No. 41.) In light of
this ruling, the Court DENIES Defendant’s motion as moot.
RULE 52(A) FINDINGS OF FACT
When parties try an action without a jury, the Court must “find the facts specially and
state its conclusions of law separately.” Fed. R. Civ. P. 52(1)(1). What follows are the Court’s
findings of fact.

Undisputed Facts
The Parties do not dispute that in early 2023, the Tennessee General Assembly enacted
the AEA. 2023 Tenn. Pub. Acts, ch. 2 (codified at Tenn. Code. Ann. §§ 7-51-1401, -1407, and §
39-17-901). Governor Bill Lee signed the AEA into law on March 2, 2023. (ECF No. 19-1.)
I. The Adult Entertainment Act
The text of the adult entertainment act reads as follows:
SECTION 1. Tennessee Code Annotated, Section 7-51-1401, is amended
by adding the following language as new subdivisions:

( ) “Adult cabaret entertainment”:

(A) Means adult-oriented performances that are harmful to
minors, as that term is defined in § 39-17-901, and that feature
topless dancers, go-go dancers, exotic dancers, strippers, male or
female impersonators, or similar entertainers; and

(B) Includes a single performance or multiple performances
by an entertainer;

( ) “Entertainer” means a person who provides:

(A) Entertainment within an adult-oriented establishment,
regardless of whether a fee is charged or accepted for entertainment
and regardless of whether entertainment is provided as an employee,
escort as defined in § 7-51-1102, or an independent contractor; or

(B) A performance of actual or simulated specified sexual
activities, including removal of articles of clothing or appearing
unclothed, regardless of whether a fee is charged or accepted for the
performance and regardless of whether the performance is provided
as an employee or an independent contractor;
SECTION 2. Tennessee Code Annotated, Section 7-51-1407, is amended
by adding the following language as a new subsection:

(c)(1) It is an offense for a person to perform adult cabaret entertainment:

(A) On public property; or

(B) In a location where the adult cabaret entertainment could be
viewed by a person who is not an adult.

(2) Notwithstanding§ 7-51-1406, this subsection (c) expressly:

(A) Preempts an ordinance, regulation, restriction, or license that
was lawfully adopted or issued by a political subdivision prior to the
effective date of this act that is in conflict with this subsection (c); and

(B) Prevents or preempts a political subdivision from
enacting and enforcing in the future other ordinances, regulations,
restrictions, or licenses that are in conflict with this subsection (c).

(3) A first offense for a violation of subdivision (c)(1) is a Class A
misdemeanor, and a second or subsequent such offense is a Class E
felony.

SECTION 3. This act takes effect April 1, 2023, the public welfare requiring
it, and applies to prohibited conduct occurring on or after that date.

(ECF 19-1.)
A. “Harmful to Minors” Standard
The AEA incorporates the “harmful to minors” (id. at PageID 93) standard from
Tennessee Code Annotated § 39-17-901:
(6) “Harmful to minors” means that quality of any description or representation, in
whatever form, of nudity, sexual excitement, sexual conduct, excess violence or
sadomasochistic abuse when the matter or performance:

(A) Would be found by the average person applying contemporary
community standards to appeal predominantly to the prurient,
shameful or morbid interests of minors;

(B) Is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable for minors;
and
(C) Taken as whole lacks serious literary, artistic, political or
scientific values for minors;

Tenn. Code Ann. § 39-17-901.

B. Intended Enforcement
The Parties stipulate that Shelby County District Attorney General Steven J. Mulroy
intends to enforce “all State of Tennessee laws that fall within his jurisdiction, including the
felony and misdemeanor crimes recently codified at [the AEA].” (ECF No. 69 at PageID 955.)
II. Procedural Posture
Plaintiff Friends of George’s, Inc. is a registered 501(c)(3) nonprofit organization based
in Memphis, Tennessee, that produces “drag-centric performances, comedy sketches, and plays.”
(ECF No. 69 at PageID 955.) On March 27, 2023, after the AEA’s enactment but before its
effective date (April 1, 2023), Plaintiff sued here for an injunction. Asserting that the new law
violated their First Amendment rights to free expression, Plaintiff sought to “prevent this
unconstitutional statute from taking [] effect.” (ECF No. 1 at PageID 13.) Plaintiff named the
State of Tennessee as the lone Defendant in the action. (Id. at PageID 2.) Plaintiff later
amended its complaint to add Defendants Bill Lee in his official and individual capacities, and
Attorney General Jonathan Skrmetti in his official and individual capacities. (ECF No. 10 at
PageID 52.) Defendants moved to dismiss Plaintiff’s complaint and to deny its request for a
temporary restraining order, arguing that sovereign immunity barred Plaintiff’s claims. (ECF
No. 19.)
In response, Plaintiff sued Shelby County District Attorney General Steven J. Mulroy in
his official and individual capacities. (See ECF No. 26 (referencing Case No. 23-2176).) The
Court held a hearing in both cases and issued a TRO as to all Defendants on March 31, 2023—
one day before AEA was to take effect. (ECF No. 26.) With the Parties’ consent, the Court
consolidated the cases and scheduled a brief period for the Parties to conduct discovery. (ECF
No. 30.) The Court also consolidated the preliminary injunction hearing with the trial on the
merits. (ECF No. 31.) A few weeks later, Plaintiff moved to dismiss all Defendants other than

District Attorney General Steven J. Mulroy in his official and individual capacities, which the
Court also granted. (ECF No. 60.)
The Court held a consolidated preliminary injunction hearing and trial on the merits on
May 22–23, 2023. The Parties then sent proposed findings of fact and conclusions of law. (ECF
No. 81, 82.)
The Court’s Findings of Fact
The Court makes the next findings of fact from the case’s record and evidence presented
at the consolidated preliminary injunction hearing and trial.
I. Ms. Vanessa Rodley’s Testimony
Ms. Vanessa Rodley testified as Plaintiff’s board member and Rule 30(b)(6)
representative.9 Based on her uncontroverted testimony,10 the Court finds the following:

A. Plaintiff’s Mission and Operation
Plaintiff’s mission is to “raise money for LGBTQ non-profits,” and to “provide a space
outside of bars and clubs where people can enjoy” drag shows. (ECF No. 81 at PageID 1064.)
Even though Plaintiff’s members believe there is “nothing wrong” with drag shows in age-

9 Under the Federal Rules of Civil Procedure, an organization may designate a person who
represents the organization and testifies on its behalf. Fed. R. Civ. P. 30(b)(6). The individual
“must testify about information known or reasonably available to the organization.” Id.
10 The Court observed Ms. Rodley’s testimony at trial. Ms. Rodley seemed to testify honestly
and without exaggeration. Nor did she give the Court any reason to otherwise question her
credibility. For these reasons, the Court finds Ms. Rodley’s testimony credible.
restricted venues like bars, Plaintiff seeks to provide a space for some non-adults to enjoy drag
outside of stigmatized, age-restricted venues. (Id. at PageID 1067–68.) Drag features “male
and female” impersonators, but also “nonbinary person[s].” (Id. at 1068–69.) Drag performers
in Plaintiff’s shows could be males impersonating females or even female actors impersonating

female characters. (Id. at PageID 1069.) Plaintiff produces its own original work. (Id. at
PageID 1065.) Its members write, produce, act, and direct. (Id.) They also serve as production
crew members. (Id.) Not all members are performers. In fact, Ms. Rodley is not a performer.
(Id. at PageID 1064–65.)
Almost all of Plaintiff’s performances are in the Evergreen Theater within Shelby County
in Memphis with no age-restrictions. (Id. at PageID 1069.) Plaintiff also produces performances
at other venues, but it has no control over age-restrictions there. (Id. at PageID 1070.) Plaintiff’s
performances can be sexual, but the performers try not to get “too risqué.” (ECF No. 81 at
PageID 1071.) Rather, they “try to stick around the PG-13 area.” (Id.)
B. Plaintiff’s Exhibits at Trial

At trial, Plaintiff played videos of three of its productions and described, through Ms.
Rodley, others as well. The Court viewed the videos in Plaintiff’s exhibit after the trial.
Defendant also submitted video clips of Plaintiff’s 2022 holiday program, which the Court
viewed before trial.
The first production Plaintiff showed is entitled “The Tea with Sister Myotis.” (See ECF
No. 80 (found at Exhibit Number 2).) Because the character describes sexual acts including
intercourse and masturbation, the Court finds that the conduct of performers in this production
could be interpreted by a law enforcement officer as violating the AEA.
The second production is entitled “Paradise by Dashboard Light.” (See ECF No. 80
(found at Exhibit Number 2).) Because the characters portrayed sexual acts in this skit, the Court
finds that the conduct of performers in this production could be interpreted by a law enforcement
officer as violating the AEA.

Finally, the Court finds the following:
These videos are typical of Plaintiff’s productions since 2011. Plaintiff intends to
continue producing these types of shows in pursuit of its mission. Plaintiff is concerned that the
AEA could subject Plaintiff and its members to felony charges. A law enforcement officer could
view Plaintiff’s productions and reasonably think that they violate the AEA. The threat of
prosecution has forced Plaintiff to alter the content of their productions, and to spend more on
security at the Evergreen Theater.
Ms. Rodley is also President and Festival Director of Mid-South Pride Foundation, Inc., a
nonprofit that hosts the “annual pride festival” in Memphis. She testified that since the AEA’s
enactment, she witnessed a “noticeable decline in sponsorship for the 2023 festival.” (ECF No.

23-3 at PageID 141.) The 2022 Mid-South Pride festival had a total of 43 sponsors while on
March 30, 2023—a day before this Court issued an Temporary Restraining Order enjoining the
AEA’s enforcement—the 2023 festival had only 23 sponsors. (Id. at PageID 142.) Also, while
the festival secured 90% of its annual budget from sponsors 60 days before the event in 2022, it
secured only 60% of its annual budget 63 days before the event this year. (Id.)
II. The AEA’s Legislative History
The Parties both cite the Tennessee General Assembly’s legislative transcript comprising
four sessions—three from the Senate and one from the House. (ECF No. 35-1.) The Court
summarizes the 100-page legislative history as follows:
The co-sponsors of the bill were Senator Johnson and Representative Todd. (Id. at
PageID 521–22, 573.) Senator Johnson proposed the AEA to “clarify current law by requiring
that adult-oriented performances may only be held in age-restricted venues and may never be
held on public [] property.” (Id. at PageID 515–16.) Senator Johnson observed that “[u]nder

current law, [] businesses that provide predominantly adult-oriented entertainment must be
licensed and age-restricted to prevent children from entering that venue. . . . With this bill, []
only the entertainer who acts in violation of this law would be subject to the criminal penalty, not
the business where the performance took place.” (Id. at PageID 544–45.)
Senator Johnson also said that the co-sponsors “received hundreds of calls, emails from
outraged parents” about performances that “any reasonable person, upon watching [the
performance], would say that’s in violation of the obscenity statute that we already have in
current code.” (Id. at PageID 520–21.) Speaking to law enforcement officers, the co-sponsors
discovered a “loophole” in the statute that “would allow that type of entertainment to take place
in public settings,” so they are “just simply trying to apply the same standards to this adult-

themed sexually explicit entertainment that can take place in these heavily regulated
establishments.” (Id. at PageID 521.) The co-sponsors stressed the need for age-restrictions at
least six other times from the legislative transcript. (Id. at PageID 521, 544, 547, 575, 576, 579.)
Senator Johnson stressed that the AEA only applies to “performances that are considered
harmful to minors” as already defined by language that “exists currently in our code, and it’s in
the obscenity statute.” (Id. at 516–17.) He then mentioned that the AEA “doesn’t ban that type
of entertainment. It simply says it can’t be done on public property, and if it’s going to be done
in a private venue, then you have to ensure that children are not present.” (Id. at 517.)
Representative Bulso, another member of the House, observed that the AEA pulled its
language from “the three-part Miller test coming from our U.S. Supreme Court in 1973.” (See
id. at PageID 605.)
Supporters of the AEA expressed their concern for children from these “sexually-explicit

performances.” (Id. at PageID 520–21, 547, 549, 567–68, 599, 602, 606.) Two witnesses spoke
to the Senate at the AEA’s introduction. (Id. at PageID 524.) Ms. Landon Starbuck, whose
credentials include being “an advocate for children harmed by child sexualization and
exploitation,” spoke first. (Id. at PageID 525.) She told the Senate how “early sexualization and
exposure to explicit adult entertainment harms children” because it grooms them into “accepting
adult sexual behavior as normal, healthy, and even celebrated while it encourages them to
simulate and participate in high-risk sexual behaviors.” (Id.) In her opinion, “normalizing the
sexualization of children empowers child predators and increases the demand to exploit and
sexually abuse children.” (Id. at PageID 526.) In response to a question about parental
responsibility, Ms. Starbuck said “the responsibility is on parents when they see [indecent sexual

acts], that’s where their parental rights end and that’s where a crime is committed.” (Id. at
PageID 529.) She then gave the examples of “sexually charged entertainment” performed in
front of children in shows marketed as “family friendly” and concluded that “[w]e don’t need a
PhD to tell us that children mimic the behaviors they are exposed to.” (Id. at PageID 527.)
When asked to cite an example of a performance she found harmful to minors, Ms. Starbuck
mentioned that “Boro Pride recently happened in Murfreesboro, Tennessee, where an adult
performer was talking about their tits and rubbing their genitalia, grinding on the ground and
spreading their legs in front of children.” (Id. at PageID 530.)
Speaking against the bill was Mr. David Taylor, a “co-owner of four businesses in
Nashville” that “cater predominantly to the LGBTQ+ community” and which employ “13 full-
time and more than 60 guest drag performers with a total annual payroll of $3 million.” (Id. at
PageID 533.) He explained how his businesses are heavily regulated by the “Alcoholic

Beverage Commission,” yet he “has not received a citation for one of [his] drag performers” in
“more than 20 years” of operation. (Id. at PageID 534.) Mr. Taylor is concerned about how the
AEA “places male and female impersonation in the category of strippers, go-go dancers, and
exotic dancers[.]” (Id.) He noted that their drag performers “ha[ve] never shown any more skin
than a Titans cheerleader on a Sunday afternoon.” (Id.)
Beyond the witnesses, several legislators expressed their concerns about the AEA’s
constitutionality, with specific reference to “drag” as an expressive art form. (See id. at PageID
551–53, 555–56, 561–62, 581, 590, 593, 596.) Some questioned the legitimacy of the AEA’s
purpose since the state “already ha[s] obscenity laws on the books if [overly-sexualized
performers] are being seen in front of children[.]” (Id. at PageID 576, 599–600.) For example,

Senator Yarboro mentioned that the AEA’s language applies the state’s adult-oriented
entertainment regulations to public places or “anywhere where any child could view, and not just
views, like anywhere where a child could view a performance. So one out of four or five people
is a child in Tennessee—basically everywhere.” (Id. at PageID 559.)
In the House, Representative Harris asked the AEA’s co-sponsor, Representative Todd, if
there were any times when adult cabaret in public has harmed his constituents. (Id. at PageID
584.) Representative Todd responded:
[I]n my community, we had a local group decide to a quote “family-friendly pride”
– or a “family friendly” drag show. And when they listed this as family friendly,
my community rose up. We filed an injunction against this group, actually against
the City of Jackson because our city mayor was endorsing this and refusing to use
local ordinances to prevent it that were very clearly set there to prevent this type of
activity in front of children.

(Id. at PageID 584–85.) He then described how “his community” succeeded in their suit and the
“drag show” was “forced to be indoors and 18 and up only.” (Id.) After that he “was asked to
come up with legislation that would make this much more clear,” and so the AEA defines the
word “cabaret.” (Id.) Representative Todd stressed that the AEA does not “prevent those
performances. It certainly says that they must not be held in front of minors[.]” (Id. at PageID
586.) He described the AEA as a “very simple common sense bill . . . protecting children first
and foremost.” (Id. at PageID 599–600.)
Representative Clemmons observed that “[n]obody wants a minor in an establishment
with a stripper. There are laws prohibiting that.” (Id. at PageID 599–600.) He concluded by
saying “you cannot exclude individual classes of people because you subjectively disagree with
them . . . [the AEA’s] language is vague and it’s overly broad. This will not stand up in court . .
. I would ask that you at least make the effort as an attorney to clean this up to bring it within
constitutional muster[.]” (Id. at PageID 601.) Representative Todd responded, saying “I think
the language is extremely clear. We’ve had multiple attorneys look over this. They think it’s
extremely solid. I’m very confident, very confident our Attorney General can stand behind this
and defend this without question.” (Id.)
For reasons it will explain later, the Court finds that the legislative transcript strongly

suggests that the AEA was passed for an impermissible purpose.
RULE 52(A) CONCLUSIONS OF LAW
These are the Court’s Conclusions of Law. There are several issues in this case with
overlapping questions of fact and law. The Court will take the issues one at a time—reiterating
some of its factual findings when appropriate and stating its legal conclusions for each issue in
turn. This section will proceed in this sequence: summary of legal conclusions, appropriate party
defendant, standing, standard of review, application of standard, vagueness, substantial
overbreadth, remedy, and conclusion.
Summary of Legal Conclusions

After Article III standing, the central legal question in this case arises from the Parties’
clashing constructions of the AEA. Plaintiff argues that the AEA is constitutionally vague in that
it applies to expressive conduct that is “harmful to minors” of all ages, it is both a content- and
viewpoint-based restriction, and that it is substantially overbroad because it applies to anywhere
a minor could be present. Defendant makes many arguments to save the statute including that
the AEA is not unconstitutionally vague because it applies only to expressive conduct that is
harmful to a reasonable 17-year-old, it is content-neutral or is to be treated as such because it is
predominantly concerned with the secondary effects of expressive conduct, and that it is not
substantially overbroad because it applies only to public property and private venues without an
age restriction.

The Court concludes that Plaintiff has proven Article III standing for a facial challenge of
the AEA. Plaintiff has organizational standing to sue for declaratory and injunctive relief,
because the certainly impending threat of the AEA’s enforcement on Plaintiff caused an injury
that a favorable ruling would redress. Plaintiff can assert the interests of parties not before this
Court to launch a facial attack on the AEA under the First Amendment’s substantial overbreadth
doctrine.
Defendant Steven J. Mulroy in his official capacity as District Attorney General of
Shelby County is the only appropriate Defendant in this case.
The Court concludes that strict scrutiny review applies to the AEA. As a matter of text
alone, the AEA is a content-, and viewpoint-based restriction on speech. The AEA was passed
for the impermissible purpose of chilling constitutionally-protected speech, and the secondary-
effects doctrine does not save it from strict scrutiny review.

The Court concludes that the AEA fails strict scrutiny review. Tennessee has a
compelling state interest in protecting the physical and psychological well-being of minors, but
Defendant has not met his burden of proving that the AEA is both narrowly tailored and the least
restrictive means to advance Tennessee’s interest.
The Court concludes that the AEA is both unconstitutionally vague and substantially
overbroad. The AEA’s “harmful to minors” standard applies to minors of all ages, so it fails to
provide fair notice of what is prohibited, and it encourages discriminatory enforcement. The
AEA is substantially overbroad because it applies to public property or “anywhere” a minor
could be present.
Finally, the Court concludes that the constitutional-avoidance canon does not apply to the

AEA’s constitutional defects. Defendant’s proposed narrowing constructions are unmoored
from the text and unsupported—if not contravened—by legislative history, which Defendant
asked the Court to consider. Acceptance of Defendant’s proposed narrowing construction under
the guise of the constitutional-avoidance would require the Court to rewrite the statute, and to
violate the principle of separation-of-powers.
Appropriate Party
At this point, the only Defendant is Steven J. Mulroy in his official capacity as District
Attorney General of Shelby County and in his individual capacity. These capacities are
particularly relevant in this case because the Office of the Tennessee Attorney General represents
Mulroy in his official capacity, while Mulroy in his individual capacity has his own counsel.
(ECF No. 34.) As an individual, Mulroy takes a different position than he does in his official
capacity. Defendant argues that the Court should dismiss Mulroy in his individual capacity
because Plaintiff’s § 1983 action seeks equitable relief, not monetary damages. So only Mulroy

in his official capacity is the appropriate party. Plaintiff disagrees based on its understanding of
Ex parte Young, 209 U.S. 123 (1908).
Only the government, and not individuals, can violate the United States Constitution. See
Virginia v. Rives, 100 U.S. 313, 318 (1879) (“The provisions of the Fourteenth Amendment . . .
have reference to State action exclusively, and not to any action of private individuals.”) But the
government is also “immune from suit” under the Eleventh Amendment’s doctrine of sovereign
immunity. See Alden v. Maine, 527 U.S. 706, 754 (1999) (“Our sovereign immunity precedents
establish that suits against nonconsenting States are not ‘properly susceptible of litigation in
courts[.]’”). Ex parte Young reconciles a tension between these two principles: the Fourteenth
Amendment’s requirement of a state action and the Eleventh Amendment’s shield of state

sovereign immunity. The Ex parte Young “fiction” has been “accepted as ‘necessary to ‘permit
federal courts to vindicate federal rights.’” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247,
254–55 (2011). This fiction creates a “narrow exception allowing an action to prevent state
officials from enforcing state laws that are contrary to federal law[.]” Whole Woman’s Health v.
Jackson, 142 S. Ct. 522, 532 (2021).
The Court concludes that Mulroy in his official capacity is the only appropriate
Defendant here. Plaintiff insists that this question is resolved by Ex parte Young’s holding that a
state official who violates federal law is “stripped of his official or representative character and is
subjected in his person to the consequences of his individual conduct.” 209 U.S. at 159–60.
Plaintiff’s observation is, at best, outdated. The Supreme Court has since held that § 1983
actions for injunctive relief allow for suits against state officers in their official capacity. Will v.
Mich. State Police, 491 U.S. 58, 71 n.10 (1989) (“[O]fficial-capacity actions for prospective
relief are not treated as actions against the State.”) (citing Ex parte Young, 209 U.S. at 159–60).

The Sixth Circuit has also held in Kanuszewski v. Michigan Department of Health that in
declaratory and injunctive relief actions, the Ex parte Young exception only applies to individual
officers in their official capacities. 927 F.3d 396, 417 (6th Cir. 2019).
As an individual citizen, Mr. Steven J. Mulroy has no more power to enforce the AEA
than any other private citizen. But as the elected District Attorney General of Shelby County,
Steven J. Mulroy is sworn to enforce state criminal laws, including the AEA. The only
Defendant in this suit who can enforce the AEA within this Court’s jurisdiction in Shelby
County is District Attorney General Steven J. Mulroy. Since Plaintiff’s § 1983 action seeks only
declaratory and injunctive relief, the Ex parte Young doctrine and the Fourteenth Amendment’s
requirement of state action preclude Plaintiff from suing Steven J. Mulroy in his individual

capacity in this suit. The Court therefore DISMISSES Steven J. Mulroy in his individual
capacity.
Standing
Federal courts have limited jurisdiction. Article III of the United States Constitution
cabins federal jurisdiction to “Cases” or “Controversies.” Without this limitation, the judiciary
runs the risk of reaching responsibilities that the Constitution commits to the states, or federal
executive and legislative branches. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021) (quoting Raines v. Byrd, 521 U.S. 811, 820 (1997)) (“The ‘law of Art. III standing is built
on a single basic idea—the idea of separation of powers.’”). Federal courts have an
“independent obligation to examine their own jurisdiction,” chief among them is the doctrine of
standing. See FW/PBS, Inc. v. Dallas, 492 U.S. 215, 231 (1990).
Courts have interpreted Article III’s case-or-controversy “requirement” as demanding
plaintiffs to show that they have standing to sue. The standing doctrine limits the category of

federal court litigants to those whose disputes are appropriately resolved through the judicial
process—preventing courts from “being used to usurp the powers of the political branches.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). To establish standing, Plaintiffs must
show that (1) they suffered an injury in fact—a legally-protected interest that is concrete,
particularized, and actual or imminent, (2) that Defendant likely caused the injury, and (3) that
judicial relief would likely redress the injury. Lujan v. Def. of Wildlife, 504 U.S. 555, 560–61
(1992). The party invoking federal jurisdiction has the burden of establishing these elements.
Id. at 561 (internal citations omitted). And standing is determined at the time of the complaint’s
filing. Ohio Citizen Action v. Englewood, 671 F.3d 564, 580 (6th Cir. 2012).
The United States Supreme Court has “altered its traditional rules of standing” for

overbreadth challenges to legislative acts on First Amendment grounds—like this one.
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). This departure stems from the Supreme
Court’s recognition that “statutes attempting to restrict or burden the exercise of First
Amendment rights must be narrowly drawn and represent a considered legislative judgment that
a particular mode of expression has to give way to other compelling needs of society.” Id. at
611–12. The Sixth Circuit clarified that “this exception applies only to the prudential standing
doctrines, such as the prohibition on third-party standing, and not to those mandated by Article
III itself, such as the injury-in-fact requirement.” Phillips v. Dewine, 841 F.3d 405, 417 (6th Cir.
2016); see also Birmingham v. Nessel, No. 21-1297, 2021 WL 5712150, at *3 (6th Cir. Dec. 2,
2021) (“[A]lthough the overbreadth doctrine permits plaintiffs to bring suit even if their First
Amendment rights have not been violated, they may bring suit only when they have suffered an
injury or face an imminent threat that they will suffer an injury.”).
The upshot is that a pre-enforcement review of a statute based on substantial

overbreadth—also known as a facial attack—allows a Plaintiff to challenge an entire statute’s
constitutionality based on its “application to other individuals not before the court.” Connection
Distrib. Co. v. Holder, 557 F.3d 321, 335–36 (6th Cir. 2008).
This case is a pre-enforcement review of a legislative act under the First Amendment—so
the Court must first determine whether the threatened enforcement of a purported law creates an
Article III injury. The Supreme Court has held that when an individual is subject to a threat of
enforcement, that is enough for standing. See Steffel v. Thompson, 415 U.S. 452, 459 (1974). In
other words, actual enforcement is not required for a court to find standing. (Id.) But a plaintiff
still needs to prove such a threat inflicts a concrete harm because fears of prosecution cannot be
merely “imaginative or speculative.” Morrison v. Bd. of Educ. of Boyd Cnty., 521 F.3d 602, 609

(6th Cir. 2008) (citing Younger v. Harris, 401 U.S. 37, 42 (1971). The Sixth Circuit summed up
the standard for pre-enforcement review in Crawford v. United States Department of Treasury:
To have standing to bring a pre-enforcement challenge to a federal statute, there
must be a substantial probability that the plaintiff actually will engage in conduct
that is arguably affected with a constitutional interest, and there must be
a certain threat of prosecution if the plaintiff does indeed engage in that conduct.

868 F.3d 438, 454–55 (6th Cir. 2017) (combining standards from Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 159 (2014), Warth v. Seldin, 422 U.S. 490, 498 (1975), and Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 402 (2013)).
Plaintiff’s overlapping grounds for standing to challenge the AEA’s constitutionality fall
into two main categories. First, Plaintiff argues that it has associational standing, meaning it has
standing to bring claims on behalf of its members. Second, Plaintiff argues that it has
organizational standing, meaning that as an organization, it has standing to bring its own claims.
Since this is a facial challenge arguing that that the AEA is substantially overbroad, Plaintiff
claims that it can assert the interest of parties not before this court. The Court will discuss these

theories in turn.
I. Associational Standing
An entity has standing to sue on its members’ behalf when it can prove these three things:
(1) its members would otherwise have standing to sue in their own right, (2) the interests at stake
are germane to the entity’s purpose, and (3) neither the claim nor the relief requested requires the
participation of the individual members in the suit. Waskul v. Washtenaw Cnty. Cmty. Mental
Health, 900 F.3d 250, 254–55 (6th Cir. 2018) (quoting Friends of the Earth, Inc. v. Laidlaw
Env’t Servs., Inc., 528 U.S. 167, 181 (2000)). Under the first element, Plaintiff must establish
that at least one of its members would have standing to sue on her own. Id. at 255 (citing United
Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 554–55 (1996)).

Thus, Plaintiff must show that at least one of its members (1) suffered an injury in fact (2) that is
fairly traceable to the defendant’s challenged conduct, and (3) that is likely to be redressed by a
favorable judicial decision. Lujan, 504 U.S. at 560–61.
Plaintiff argues that it can claim associational standing because its member-performers,
who are “male or female impersonators” that perform drag shows, could be prosecuted under a
plain reading of the AEA. Particularly, Plaintiff is concerned that its members’ drag show
performances could be seen by a law enforcement officer as violating the AEA’s “harmful to
minors” standards under Tennessee Code Annotated § 39-17-901. According to Plaintiff, this
standard regulates not just physical portrayals of drag, but even a “description or representation,
in whatever form” of sexual content that a law enforcement officer could see as rising to the
level of “harmful to minors.”
Defendant argues Plaintiff has not established associational standing because it has not
named a single individual member. Defendant cites Summers v. Earth Land Institute for the

proposition that a plaintiff organization must name a single individual member to establish
associational standing. 555 U.S. 488, 498–499 (2009) (“This requirement of naming the affected
members has never been dispensed with in light of statistical probabilities, but only where all the
members of the organization are affected by the challenged activity.”); see also Ass’n of Am.
Physicians & Surgeons v. FDA, 13 F.4th 531, 543 (6th Cir. 2021) (“To satisfy [the Article III
injury] element, an organization must do more than identify a likelihood that the defendant’s
conduct will harm an unknown member in light of the organization’s extensive size or
membership base. The organization must instead identify a member who has suffered (or is
about to suffer) a concrete and particularized injury from the defendant’s conduct. And the
organization must show that its requested relief will redress this injury.”) (internal citations

omitted).
The Court agrees with Defendant and finds that Plaintiff failed to meet its burden of
naming at least one member to establish associational standing. Plaintiff did not identify a single
member in its original complaint (ECF No. 1), amended complaint (ECF No. 10), and its
complaint against Defendant Mulroy in both capacities (ECF No. 32-1). At trial, Plaintiff called
only one Friends of George’s, Inc. member, Vanessa Rodley, who is both Plaintiff’s board
member and Rule 30(b)(6) representative. Ms. Rodley testified about several topics: Plaintiff’s
mission, the AEA’s effect on Plaintiff, the AEA’s effect on another LGBTQ organization in
Shelby County, among other issues. While she testified about several unnamed member-
performers’ fear of prosecution from the AEA, Ms. Rodley did not testify about being a
performer herself and about her own fear of prosecution from the AEA. Plaintiff’s failure to
identify a single injured member dooms its associational standing claim.
Plaintiff invites the Court to find associational standing from the fact that all its members

are harmed by the AEA. In N.A.A.C.P. v. Alabama, the Supreme Court held that an organization
established associational standing when it asserted the rights of all its members on First
Amendment Freedom of Association grounds. 357 U.S. 449 (1958). N.A.A.C.P. involved the
organization’s noncompliance with a court order requiring it to furnish a list identifying its
members in the state. Id. at 451. The Supreme Court held that N.A.A.C.P. is the appropriate
party to assert all its members rights “because it and its members are in every practical sense
identical.” Id. at 460.
The N.A.A.C.P. holding does not favor Plaintiff. It is a Freedom of Association case in
which the compelled disclosure of members’ affiliation with the plaintiff organization is the
injury itself. It follows that the Supreme Court found the organization could properly assert its

members’ interests—who were not parties to the suit—as there is no need for identifying a
member when disclosure of her affiliation with the entity is her injury. The same is not true in
this case as Ms. Rodley testified that not all of Plaintiff’s members are performers and the AEA
regulates—even at its broadest reading—participation in a performance, not membership in an
organization. Some members are production crew members, producers, and writers. And
Plaintiff’s counsel conceded at trial that their interpretation of the AEA is that it applies to all the
performers on stage. Plaintiff’s counsel did not argue that writers, producers, or crew members
may be affected by the AEA.
The bottom line is that Plaintiff failed to identify a single member who sustained an
Article III injury.11 It also failed to substantiate its claim that all its members would be injured
by the AEA. Because the Court finds that Plaintiff cannot meet the first element of associational
standing, the Court will not consider Plaintiff’s arguments under the remaining elements.

Therefore, Plaintiff failed to meet its burden to establish associational standing.
II. Organizational Standing
Plaintiff also claims organizational standing “because it [the organization itself] has
suffered a palpable injury as result of the defendants’ actions.” MX Grp., Inc. v. Covington, 293
F.3d 326, 332–33 (6th Cir. 2002). To establish organizational standing, a plaintiff must also
meet the three standing elements: injury-in-fact, causation, and redressability. See Fair Elections
Ohio v. Husted, 770 F.3d 456, 459 (6th Cir. 2014). But an organization’s “mere interest in a
problem” cannot confer standing. Sierra Club v. Morton, 405 U.S. 727, 739 (1972). It must
show instead that its “ability to further its goals has been ‘perceptively impaired’ so as to
constitute far more than simply a setback to the organization’s abstract social interests.” Greater

Cincinnati Coal. for the Homeless v. Cincinnati, 56 F.3d 710 (6th Cir. 1995) (quoting Havens
Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). And Plaintiff “cannot manufacture
standing by choosing to make expenditures based on hypothetical future harm that is not
certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013).

11 Plaintiff identified some of its members who are also performers at trial. (ECF No. 81 at
PageID 1065.) But none of them testified or submitted declarations alleging injury to
themselves. (Id.) Plaintiff argued that it initially disclosed to Defendant that it would identify
and make available its members for depositions subject to a protective order, but Defendant
never made such request. (ECF No. 81 at PageID 1140.) The Court reminds Plaintiff that it
bears the burden of proving standing—not Defendant.
Plaintiff argues that it has organizational standing for this pre-enforcement challenge
because the AEA “perceptively impairs” its mission of raising money for LGBTQ nonprofits and
taking drag into the mainstream. In other words, it would have cancelled or restricted its
productions involving “male or female impersonators”—had it not been for this Court’s issuance

of a temporary restraining order. And that the AEA’s vagueness and overbreadth chills not only
its members’ speech, but also the speech of other drag performers in Tennessee.
Defendant argues that Plaintiff cannot establish that the AEA will cause it to suffer an
Article III injury because it disclaims any intent to engage in conduct that even arguably violates
the Act. (ECF No. 64.) Defendant next retorts that Plaintiff’s past performances do not violate
the AEA because they could not meet the “harmful to minors” standard. Defendant also
contends that Plaintiff’s subjective fears of prosecution do not rise to the standard required to
meet the Article III injury standard for pre-enforcement facial challenges. Finally, Defendant
argues that Plaintiff has failed to identify the requisite number of substantial overbreadth
applications of the AEA.

Before discussing these organizational standing arguments, the Court begins with a
clarification.
A. Defendant’s Objection to Franklin Pride Evidence
When the Court issued a temporary restraining order in this case, the Defendants included
the State of Tennessee, Governor Lee, and Attorney General Skrmetti. Therefore, in resolving
Plaintiff’s claims, the Court considered Plaintiff’s pleadings and declarations that referenced the
AEA’s impact on the entire state—to include cities outside Shelby County like Nashville,
Franklin, and Knoxville. (ECF No. 23-1.) Plaintiff has since moved to voluntarily dismiss the
other Defendants, leaving only District Attorney General Mulroy as the lone Defendant here. At
trial, Plaintiff called Mr. Clayton Klutts, President of a Franklin-based LGBTQ organization who
testified about events that occurred in Franklin. Defendant objected on relevance grounds.
The Court disregarded Mr. Klutts’s testimony and any other evidence about the AEA’s
impact outside of Shelby County. Judicial review of the AEA’s constitutionality is distinct from

the Court’s equitable power to issue an injunction prohibiting the AEA’s enforcement. Because
District Attorney General Mulroy only has enforcement powers within Shelby County, Plaintiff’s
standing to bring this suit could arise only from Article III injuries it could (1) fairly trace to
Defendant and (2) that could be redressed with a favorable ruling concerning Defendant.
Therefore, the only evidence relevant to standing in this case is limited to the AEA’s potential
enforcement in Shelby County.
B. Evidence at Trial on Plaintiff’s Mission and Performances
Ms. Rodley testified during trial that Plaintiff is a “drag-centric theatre group” that puts
on three productions a year for two purposes: to raise money for LGBTQ nonprofits, and to
provide a space outside of clubs where people can enjoy drag shows. (ECF No. 81 at PageID

1064.) She testified that Plaintiff’s members fear criminal prosecution under the AEA because—
as a drag-centric theatre group that features “male or female impersonators”—its performances
can be sexual in nature. (See id. at PageID 1065–66.) Speaking in terms of movie ratings, she
testified that Plaintiff tries to “stick around the PG-13 area and not be too risqué so as to merit an
R rating.” (Id. at PageID 1071.) She testified that Plaintiff does not place age restrictions on its
shows. (Id.) Still, she admits that she does not think they would be appropriate for a five-year-
old but could be appropriate for a fifteen-year-old. (Id. at PageID 1114.) As part of its proof,
Plaintiff played three video productions during the trial.12
The first video is from a production entitled “The Tea with Sister Myotis” that Ms.
Rodley claimed to be a satire of the show “The View.” (Id. at PageID 1081–82.) The video

showed four individuals, whom Ms. Rodley characterized as “female impersonators.” (ECF No.
80 (found at Exhibit Number 2).) The sixteen-minute video centered on one character’s
discussion of various issues, punctuated by several jokes and innuendos about sexual intercourse
and masturbation. (Id.) Plaintiff claims this exhibit could fall under § 39-17-901’s “description
or representation” of “masturbation” and “simulated ultimate sexual acts.” (Id.) Ms. Rodley
testified that Plaintiff held this production in the Evergreen Theater with no age restrictions.
The second video is from a production entitled “Paradise by the Dashboard Light,” in
which six individuals—half of whom were characterized by Ms. Rodley as “female
impersonators”—pretended to sing while acting out the lyrics to the song. (ECF No. 81 at
PageID 1083.) During the four-minute song, the performers made sexual gestures with each

other behind a translucent curtain. (ECF No. 80 (found at Exhibit Number 2).) Plaintiff claims
this performance could fall under § 39-17-901’s description of “simulated ultimate sexual acts”
clause. Ms. Rodley testified that Plaintiff held this production in the Evergreen Theater with no
age restrictions.
The third video is entitled “Trixie Thunderpussy—Pussycat Song,” which featured one
performer whom Ms. Rodley characterized as a “female impersonator.” (ECF No. 80 (found at

12 In his Proposed Findings of Fact and Conclusions of Law, Defendant implies that the Court
could not “evaluate the work’s artistic merit as a whole,” because Plaintiff played only clips,
instead of full shows, at trial. (ECF 85 at PageID 1332.) Defendant did not object to this
evidence at trial—but the issue is moot as the Court watched the full videos for the first and
second performances.
Exhibit Number 2).) This clip showed the performer pretending to sing the lyrics to a song while
making gestures toward the pubic area. Plaintiff claims this performance could fall under § 39-
17-901’s “description or representation” of “female genitals in state of sexual arousal” clause.
Ms. Rodley testified that this production was held in an age-restricted venue and before the

Plaintiff’s formation as a nonprofit.
Ms. Rodley also testified about three of Plaintiff’s past productions without playing the
videos at trial. (ECF No. 81 at PageID 1074.) The first one is a “skit from Drag Rocks
involving Rod Stewart.” Ms. Rodley testified that the skit involved a portrayal of sexual acts
between two performers, one of whom was “wearing tight, tight black pants and he is . . .
wearing a penis that is over exaggerated so the audience can see it’s there.” The second is a
performance entitled “Bitch, You Stole My Purse,” which is about a “lot lizard,” and involved
“blow jobs and possibly having sex as well as pooping in somebody’s purse.” And the third is a
skit entitled “Dick in a Box,” which involved “two people presenting gift packages where their
penises would be . . . penis is in a box, it’s got tissue around it. It’s really hard to see if it is

[erect] or not.” Plaintiff claims these performances could fall under § 39-17-901’s under various
clauses to include “Representation of Excretory Function,” and “Depiction of male genitals in
discernibly turgid state.”
C. Plaintiff Has Organizational Standing to Bring this Substantial Overbreadth
Challenge

The Court finds that Plaintiff met its burden of proving organizational standing to facially
challenge the AEA’s constitutionality in a pre-enforcement action for three main reasons. First,
Plaintiff met the Sixth Circuit’s standard for pre-enforcement review under Crawford because it
proved a “substantial probability” of engaging in conduct that is “arguably affected with a
constitutional interest” and it faces a “certain threat of prosecution.” 868 F.3d at 454–55.
Second, Plaintiff’s own injury allows it to assert the interests of parties not before this Court
under the Supreme Court’s relaxed prudential standing for First Amendment substantial
overbreadth challenges. See id.; Speech First, Inc. v. Schlissel, 939 F.3d 756, 764 (6th Cir.
2019).

1. Plaintiff Met the Crawford Pre-enforcement Review Standard,
Causation, and Redressability

The Sixth Circuit’s standard for a pre-enforcement challenge to a statute has three
components: (1) a substantial probability that Plaintiff will engage in a course of conduct that is
(2) arguably affected with a constitutional interest, but is proscribed by statute, and (3) certain
threat of prosecution under the statute. Crawford, 868 F.3d at 454–55.
a. Substantial Probability of Engaging in Conduct
The Court finds Plaintiff has met the first element. An organization is injured when its
“ability to further its goals has been ‘perceptively impaired’ so as to constitute[] far more than
simply a setback to the organization’s social interests.” Greater Cincinnati Coal. for the
Homeless v. Cincinnati, 56 F.3d 710, 716 (6th Cir. 1995) (quoting Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 (1982)). Plaintiff’s Amended Complaint notes that it “produces
drag-centric performances, comedy sketches, and plays.” (ECF No. 10 at PageID 52.) Ms.
Rodley’s uncontroverted testimony was that Plaintiff puts on “three productions a year to raise
money for fellow LGBTQ non-profits” and provides “a space outside of the bars and clubs
where people can enjoy this art form.” (ECF No. 81 at 1064.) She also testified that most of
their shows are held at the Evergreen Theater within Shelby County with no age restrictions. (Id.
at PageID 1069.) She said that the exhibits Plaintiff introduced at trial constitute “content that is
common in Friends of George’s shows”—as a matter of fact, all but one of them are Plaintiff’s
productions since 2011.
The Court finds Ms. Rodley’s uncontroverted testimony is credible. Based on her
testimony, the Court finds that Plaintiff has been producing “drag-centric performances” since
2011 with multiple performances each year in its Evergreen Theater within Shelby County with
no age restrictions, and no criminal incidents. And Plaintiff intends—beyond a substantial

probability—to continue producing drag performances with “male or female impersonators” as
part of its mission of raising money for LGBTQ nonprofit organizations and taking drag shows
into the mainstream. Plaintiff also intends to continue producing drag-centric performances.
What is more, Plaintiff’s suit to enjoin enforcement of the AEA reflects its commitment to assert
“the right of artists to communicate their art and their message to the general public.” (ECF No.
81 at PageID 1054.)
b. Conduct Is Arguably Affected with a Constitutional Interest
but Is Proscribed by Statute
The Court finds Plaintiff has also met the second element. Defendant asks the Court to
first determine the scope of the AEA to assess Plaintiff’s standing. Unsurprisingly, Defendant’s
understanding of the AEA’s scope is much narrower than Plaintiff’s. To accept Defendant’s
position the Court would have to agree to apply the Tennessee Supreme Court’s narrowing
construction to the AEA’s “harmful to minors” standard. See Davis-Kidd v. McWherter, 866
S.W.2d 520, 528 (Tenn. 1993). And the Court would have to take Defendant’s choice between
“one of two ways” in which the AEA’s applicable location can be understood. (ECF No. 85 at
1327–29.)
But this juncture is about standing to sue, not success on the merits. Plaintiff need only

show that its conduct (that is expressive conduct) is “arguably affected with a constitutional
interest, but proscribed by statute[.]” Crawford v. United States, 868 F.3d 438, 454 (6th Cir.
2017). “Arguably” is not a high standard. In fact, it is a low one. The intricacies of the AEA’s
constitutionality and its impact on Plaintiff’s expressive conduct will be fully discussed in the
merits section below. Suffice to say, in determining standing, the Court concludes that the AEA
criminalizes “performances that are harmful to minors,” which include those that are “sexual in
nature.” (ECF No. 19-1.) And the Court finds the AEA amends Tennessee Code Annotated § 7-

51-1401 and § 7-51-14707—which regulate operators of adult-oriented establishments—in one
significant way that impacts Plaintiff. The AEA regulates the performers themselves,
implicating their First Amendment rights with criminal consequences. After weighing the
evidence at trial, the Court finds that Plaintiff’s exhibits are performances that both described
and represented sexual content that is arguably constitutionally-protected.
The parties dispute whether Plaintiff’s performances are proscribed by the statute:
Plaintiff contends that some might say their performances meet the definition of “harmful to
minors” under § 39-17-901. Defendant disagrees, contending that even Plaintiff does not allege
that its performances go that far. Both statements can be true—Plaintiff can believe its
performances are not proscribed by statute while believing others may disagree. The Parties can

litigate this question’s merits, but for standing purposes, the Court finds that Plaintiff showed
that its performers’ conduct is at least “arguably” proscribed by § 39-17-901. The Court also
finds that the Parties’ dispute on this point fortify the conclusion that Plaintiff’s conduct is
arguably affected with a constitutional interest that is proscribed by statute.
c. Certain Threat of Prosecution Under the Statute
Finally, the Court finds Plaintiff has met the third element. Plaintiff expressed concern
that the AEA “could subject them to felony charges,” so it will need either to “cancel the show,
or add an age restriction to an event that has always been open to all ages.” (ECF No. 7 at
PageID 45; ECF No. 10 at PageID 62.) Ms. Rodley testified that “some or all of [Plaintiff’s]
board members/performers are threatened with potential for criminal prosecution” under the
AEA. (ECF No. 81 at PageID 1065–66.) Defendant’s cross-examination revealed that Plaintiff
does not think that their performances lack artistic value. (Id. at PageID 1096–97.) And
Defendant’s briefs emphasize that Plaintiff “disclaims that it has or will engage in any conduct”
that violated the AEA. (ECF No. 58 at PageID 788.)

But neither Plaintiff nor Ms. Rodley are law enforcement officers tasked with the AEA’s
enforcement. Plaintiff can hold the conviction that its productions are not harmful to minors
while harboring the fear that Defendant, armed with a criminal statute, disagrees. This position
accords with Plaintiff’s suit for a permanent injunction of the AEA. At this stage, the question
before the Court is not whether Plaintiff’s past conduct violates the AEA. Rather, the question is
whether Plaintiff faces what Crawford calls a “certain threat of prosecution.”13
The Court finds that Plaintiff’s exhibits at trial “describe or represent” sexual content of a
wide range: from masturbation wordplay that a fifteen-year-old may or may not understand, to a
thinly-veiled, but clearly-highlighted, depiction of sexual acts that would not escape an eight-
year-old’s attention. The line between obscenity and art is so subjective that Justice Potter

Stewart’s comment: “I know it when I see it” remains relatable in 2023. Jacobellis v. Ohio, 378
U.S. 184, 197 (1964). But Defendant asks the Court to take comfort in the fact that the AEA’s
test merely adapts the constitutionally-upheld Miller v. California standard and extends it to
material that is harmful to minors. Defendant argues that “minor” here means reasonable 17-
year-olds only. This definition of “minor” is based on Defendant’s theory that the Tennessee

13 In its 2013 decision in Clapper, the Supreme Court noted that “threatened injury must be
certainly impending.” See Clapper, 568 U.S. at 409. Later, in Susan B. Anthony List v.
Driehaus, which set the standard for standing in pre-enforcement challenges to legislative acts,
the Supreme Court used the words “credible threat of prosecution.” 573 U.S. 149, 159 (2014).
Decided by the Sixth Circuit in 2017, Crawford rephrased the standard by synthesizing
Driehaus with Clapper and switched the standard’s language to “certain threat of prosecution.”
868 F.3d at 454–55.
Supreme Court’s narrowing construction of a statute regulating the commercial display of adult
material applies to the AEA here. (ECF No. 85 at PageID 1332–33 (citing Davis-Kidd v.
McWherter, 866 S.W.2d 520, 528 (Tenn. 1993)).)
The Court will fully discuss Defendant’s arguments in the merits section. But to

determine injury-in-fact, the Court only needs to find whether Plaintiff faces a certain threat of
prosecution—not certain prosecution14—under the AEA. In other words, is there a certainly-
impending threat that a Shelby County law enforcement officer will determine that Plaintiff’s
performances violate the AEA? The Court finds that the answer is yes. Plaintiff has met its
burden of proving a “certain threat of prosecution” under the AEA for two main reasons. First,
Defendant’s narrowing construction by substituting 17-year-old for “minors” veers so far from
the AEA’s text that neither reasonable people nor officers in Shelby County would have fair
notice of the AEA’s meaning.15 The Court finds that a reasonable officer watching these
performances could conclude they are harmful to children, say a five- or eight-year-old, and
arrest Plaintiff’s performers under the AEA.

14 Black’s Law Dictionary defines “prosecution” as “[t]he commencement and carrying out of
any action or scheme.” Prosecution, BLACK’S LAW DICTIONARY (11th ed. 2019). Both
Crawford and Driehaus use the word “enforcement” interchangeably with “prosecution.” 868
F.3d at 460 (“[Plaintiff] has not alleged any facts that would show a credible threat of
enforcement against him.”); 573 U.S. at 161 (“We agree: Petitioners have alleged a credible
threat of enforcement.”).
15 Even if the Davis-Kidd opinion were attached with the AEA (it is not), some might say that
an equally convincing reading of Davis-Kidd is that the Tennessee Supreme Court applied its
narrowing construction only to the adult materials display statute (§ 39-17-914(a)) and not to
the “harmful to minors” standard in § 39-17-901. Also, the Tennessee Supreme Court decided
Davis-Kidd in 1993. In 2008, the Third Circuit reviewed the Child Online Protection Act on
remand from the United States Supreme Court in ACLU v. Mukasey. 534 F.3d 181 (3d Cir.
2008), cert. denied, 555 U.S. 1137 (3d Cir. 2009). The Third Circuit found that the definition of
“harmful to minors” in that statute—which is nearly identical to the one in the AEA—was
unconstitutionally vague because it “applies in a literal sense to an infant, a five-year old, or a
person just shy of age seventeen.” Id. at 191.
Second, even if the Court were to accept Defendant’s argument that the AEA applies
only to a “reasonable-17-year-old minor,” Plaintiff would still face a certain threat of criminal
prosecution. In Ginsberg v. New York, the Supreme Court’s discussion on what was deemed to
be harmful to “minors under 17 years of age,” was the so-called “girlie” magazines—material

that depicts “female nudity . . . showing female buttocks with less than an opaque covering, or
the showing of the female breast with less than a fully opaque covering of any portion thereof
below the top of the nipple[.]” 390 U.S. 629, 631–33 (1968) (internal quotations omitted).
Although many could debate the artistic value of Plaintiff’s performances, few would think they
are less “obscene” than the “girlie magazines” found to be harmful to minors in Ginsberg. And
none could categorically dismiss the threat that a Shelby County officer may find them to be
harmful to minors. The obscenity standard for adults already gives a lot of discretion to an
individual officer’s judgment on what she considers harmful under community standards.
Section 39-17-901’s “harmful to minors” standard lowers the floor for criminal behavior,
equipping law enforcement officers with even more discretion. The chance that an officer could

abuse that wide discretion is troubling given an art form like drag that some would say
purposefully challenges the limits of society’s accepted norms. And the AEA covers a wide
geographical reach: “in a location where adult cabaret entertainment could be viewed by a person
who is not an adult.”16
The Court emphasizes that the fear of prosecution from law enforcement officers is not
merely speculative but certainly impending. The Parties stipulate that Defendant intends to
enforce the AEA. Moreover, the AEA, unlike the statutes in Ginsberg, Miller, and Davis-Kidd,

16 As discussed below, while the Supreme Court upheld a similar standard in Ginsberg and
Miller, this case is different because the AEA covers a much wider geographical scope than the
statute in these two cases.
criminally sanctions not the business operators but the performers themselves. The AEA also
contains no textual scienter requirement, safe harbors, or even affirmative defenses—like
parental consent—present in similar obscenity statutes as discussed more fully below.
The Court finds that Plaintiff’s past performances and present efforts to continue its

mission of taking drag into the mainstream subjects it to a certain threat of enforcement under the
AEA. Defendant’s counsel argues that they think Plaintiff’s exhibits are not “harmful to minors”
under the AEA. But this would lead to Plaintiff taking an enormous risk. It would have to eat
the proverbial mushroom to find out whether it is poisonous. See also Babitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979) (observing that a plaintiff “should not be
required to await and undergo a criminal prosecution as the sole means of seeking relief”). Our
jurisprudence does not demand such an extreme measure—Article III requires a threat of
prosecution, not actual prosecution. So the Court finds Plaintiff has met Article III’s injury-in-
fact requirement.
d. Causation and Redressability
The Court finds that Plaintiff has shown causation and redressability, fulfilling the rest of

Article III standing requirements. The AEA caused the threat of prosecution, the crux of
Plaintiff’s injury in this pre-enforcement action. And a favorable ruling for Plaintiff—in the
form of the declaratory and injunctive relief it seeks—would redress its harm from the threat of
criminal prosecution. An order declaring the AEA unconstitutional, and enjoining Defendant’s
enforcement of the AEA would redress Plaintiff’s injury. The Court therefore finds Plaintiff has
standing to bring this pre-enforcement overbreadth challenge to the AEA.
2. Plaintiff Can Assert the Interest of Parties not Before this Court
The Supreme Court has noted the particular importance of protecting the First
Amendment from vague and substantially overbroad regulations that may chill speech.
N.A.A.C.P. v. Button, 371 U.S. 415, 433 (“Because First Amendment freedoms need breathing
space to survive, government may regulate in the area only with narrow specificity.”). The Sixth
Circuit has held that the “overbreadth doctrine provides an exception to the traditional rules of
standing and allows parties not yet affected by a statute to bring actions under the First

Amendment based on a belief that a certain statute is so broad as to ‘chill’ the exercise of free
speech and expression.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995).
Allegations of a “subjective ‘chill’ are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future harm.” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 418 (2013). But the Sixth Circuit noted the difference between “objective chill,”
which refers to laws that produce direct injuries, and “subjective chill,” which refers to laws that
produce no injuries. See Speech First, Inc. v. Schlissel, 939 F.3d 756, 764 (6th Cir. 2019) (“In
order to have standing, therefore, a litigant alleging chill must still establish that a concrete
harm—i.e., enforcement of a challenged statute—occurred or is imminent.”). The upshot is that
objective chill—in the form of an imminent criminal enforcement of a challenged statute—is

sufficient to prove Article III injury. Id. at 765.
As the Court already discussed above, Plaintiff proved Article III standing by meeting the
Crawford elements. Plaintiff now benefits from the First Amendment jurisprudence’s relaxation
of standing requirements: it can now assert the rights of parties not before this Court in its
overbreadth challenge. Our Circuit’s Chief Judge succinctly explained the rationale behind this
powerful doctrine in Holder:
[T]he whole point of a facial challenge, or what the courts in the First Amendment context
have come to call an overbreadth challenge, is to permit the claimant to strike the law in
its entirety based on its application to other individuals not before the court. The
overbreadth doctrine thus changes the customary rules of constitutional litigation: It relaxes
the general prohibition against vicarious litigation by allowing claimants to assert the rights
of third parties, and it permits a court to strike a law in its entirety even though it
legitimately may be enforced in some other settings. Broadrick, 413 U.S. at 612–13. Due
to the risk that “enforcement of an overbroad law” may “deter[ ] people from engaging in
constitutionally protected speech” and may “inhibit[ ] the free exchange of ideas,” the
courts will strike a law on its face “if it prohibits a substantial amount of protected speech”
both “in an absolute sense” and “relative to the statute's plainly legitimate sweep.” United
States v. Williams, 553 U.S. 285 (2008); see also Broadrick, 413 U.S. at 615.”

557 F.3d at 335–36. Facial invalidation of a statute is “strong medicine that is not to be casually
employed.” United States v. Williams, 553 U.S. 285, 293 (2008) (citations and internal
quotations omitted). Hence, Plaintiff has the burden of proving substantial overbreadth—that is
a substantial number of the AEA’s applications must be “unconstitutional, in relation to the
statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010). Since
the AEA imposes criminal sanctions on speech, its chilling effect is magnified. Cf. Ashcroft v.
ACLU, 542 U.S. 656, 667 (2004) (observing the potential chilling effect of a regulation on
speech is “eliminated, or at least diminished,” when the challenged statute does not impose
criminal sanctions).
Plaintiff presented uncontroverted evidence at trial demonstrating potentially
unconstitutional applications of AEA in Shelby County. Although Plaintiff’s associational
standing theory failed, meaning the Court did not consider the potential injuries to its members,
the overbreadth doctrine now permits Plaintiff to assert those injuries on behalf of parties not
before the Court. Ms. Rodley also testified as Plaintiff’s board member, and as President and
Festival Director of Mid-South Pride Foundation, Inc., a nonprofit that hosts the “annual pride
festival” in Memphis, Tennessee. (ECF No. 23-3 at PageID 141.) Plaintiff can assert the harm
that AEA purportedly inflicted on the Mid-South Pride organization and Absent Friends, another
theater organization based in Memphis. Lastly, Plaintiff can present hypotheticals—as it has in
both the pretrial briefs and at trial—to demonstrate unconstitutional applications of the AEA
within Shelby County. See Holder, 557 F.3d at 335 (“Although litigation by hypothetical
generally is frowned upon, if not barred in other areas of constitutional litigation, it is sometimes
required in free-speech cases.”) (compiling cases) (internal quotations and citations omitted).
The Court will discuss the merits of these non-parties’ harm in the substantial overbreadth
portion of this order. At this point, the Court finds that Plaintiff can bring these claims under the

First Amendment’s overbreadth doctrine.
These harms from AEA’s substantial overbreadth are fairly traceable to the AEA and
would be redressed by the relief Plaintiff seeks: a judgment declaring the AEA unconstitutional
and a permanent injunction against Defendant. The Court finds therefore that Plaintiff can assert
the interests of parties not before this court.
Merits
The First Amendment generally prevents the government from making a law “abridging
the freedom of speech.” U.S. Const. amend. I. The Supreme Court has interpreted “speech” to
include “expressive conduct.” Texas v. Johnson, 491 U.S. 397, 404 1989 (“[W]e have
acknowledged that conduct may be ‘sufficiently imbued with elements of communication to fall

within the scope of the First and Fourteenth Amendments.’” (quoting Spence v. Washington, 418
U.S. 405, 409 (1974)). But not all speech is valued equally. The Supreme Court has identified
certain types of speech holding “such slight social value,” that any interest in protecting that
speech is “clearly outweighed by the social interest in order and morality.” R.A.V. v. St. Paul,
505 U.S. 377, 382 (1992) (identifying obscenity, defamation, and fighting words as examples of
“low value speech”).
Outside of low value speech, federal courts reviewing restrictions on speech “because of
disapproval of the ideas expressed,” apply different tiers of scrutiny. Id. As the Court discusses
below, either strict or intermediate scrutiny usually applies. The level of scrutiny depends on
several factors, including whether the regulation is based on the content of, or the viewpoint
expressed by, that speech.
Plaintiff argues that the AEA is a content-based, view-point-based, restriction on speech
that fails strict scrutiny. Defendant disagrees, arguing that the AEA is a time, place, and manner

restriction that should be analyzed under intermediate scrutiny. But in anyevent, Defendant says
that the AEA passes even the higher standard of strict scrutiny. The Court begins by determining
the standard of review.
I. Standard of Review
A content-based regulation, which targets “speech based on its communicative content,”
is presumptively unconstitutional and must pass strict scrutiny. Reed v. Gilbert, 576 U.S. 155,
163 (2015); see also Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (“As a general matter, the First
Amendment means that government has no power to restrict expression because of its message,
its ideas, its subject matter, or its content.”) (citations and internal quotations omitted). By
contrast, a content-neutral regulation, which is “agnostic as to content” need only meet

intermediate scrutiny. Austin v. Reagan National Advertising of Austin, 142 S.Ct. 1464, 1471
(2022).
The Court’s first question is whether the law is content-based on its face—as a matter of
text alone. See Reed, 576 U.S. at 165. This is because a facially content-based law is subject to
strict scrutiny regardless of the government’s motive. See id. (“[A]n innocuous justification
cannot transform a facially content-based law into one that is content neutral.”).
A. Is the AEA a Content-based Restriction as a Matter of Text?
Plaintiff argues that the AEA is a facially content-based restriction for two reasons. First,
the AEA prohibits a specific type of content: “adult-oriented performances that are harmful to
minors.” (ECF No. 81 at PageID 1188.) Second, it is both a content- and viewpoint-based
restriction because it targets the identity of the performers, particularly “male or female
impersonators.” (ECF No. 81 at PageID 1189.) At trial, Defendant conceded that the AEA
“does reference content in the statute,”17 (id. at PageID 1193) but insisted that the AEA does not

discriminate based on viewpoint (id. at PageID 1198).
1. The AEA is a Content-Based Regulation
The Court concludes that the AEA is a facial content-based restriction. Section 2 of the
AEA imposes criminal sanctions on performers of “adult cabaret entertainment” by amending
Tennessee Code Annotated § 7-51-1407, the Tennessee statute that currently defines
“[r]estrictions on locations of adult-oriented businesses.” (ECF No. 19-1 at PageID 93–94.)
Section 1 of the AEA defines “[A]dult cabaret entertainment,” in part, as “adult oriented
performances that are harmful to minors.” (Id. at PageID 93.) Section 1 defines “harmful to
minors,” by drawing from the state’s criminal code’s definitions on obscenity in Tennessee Code
Annotated § 39-17-901. Section 39-17-901’s definition is this: “‘Harmful to minors’ means that

quality of any description or representation, in whatever form, of nudity, sexual excitement,
sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:
[adapted Miller18 three-prong test (See supra pp. 4–5)].” (Id.) At trial, the Parties did not
dispute that the AEA is content-based because it targets “speech based on its communicative
content”—that is, content that is not obscene for adults but may be indecent and harmful to
minors. (ECF No. 81 at PageID 1189, 1193.)

17 Defendant quickly—and correctly—pointed out that sometimes, a court can conclude that a
statute is content-based, but treat it as if it were content-neutral. (ECF No. 81 at PageID 1193
(referring to the “secondary effects doctrine”).) The Court will discuss that issue below.
18 Defendant describes the standard as an adapted version of the obscenity test in Miller v.
California, 413 U.S. 15, 21 (1973).
But Defendant’s trial brief presents an argument that the Court will now address.
Defendant acknowledged that the Supreme Court in R.A.V., noted that “low value” speech like
fighting words and obscenity cannot be made “vehicles for content discrimination unrelated to
their distinctively proscribable content.” (ECF No. 58 at PageID 792 (citing 505 U.S. at 383–

84).) Defendant argues that the AEA fits within one of R.A.V.’s exceptions to this rule: a state
may choose to prohibit “only that obscenity which is the most patently offensive in its
prurience,” which the AEA does by regulating a subset of “unprotected obscene speech.” (Id.)
The Court disagrees. There is no question that obscenity is not protected by the First
Amendment. But there is a difference between material that is “obscene” in the vernacular, and
material that is “obscene” under the law. Miller v. California provides the standard for
determining “obscenity” under the law. 413 U.S. 15, 21 (1973) (setting out a three-prong
standard). Legal obscenity is an exceptionally high standard as one of its prongs requires that the
speech “not have serious literary, artistic, political, or scientific value.” Id. Moreover, speech
that is not obscene—which may even be harmful to minors—is a different category from

obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not
obscene—speech receives less protection than political, artistic, or scientific speech. See
Ashcroft v. A.C.L.U.., 535 U.S. 234, 245 (2002) (“It is also well established that speech may not
be prohibited because it concerns subjects affecting our sensibilities.”); Reno v. A.C.L.U., 521
U.S. 844, 874 (1997) (reaffirming that the First Amendment protects sexual expression which is
indecent but not obscene).
The AEA’s regulation of “adult-oriented performances that are harmful to minors under §
39-17-901” does target protected speech, despite Defendant claims to the contrary. Whether
some of us may like it or not, the Supreme Court has interpreted the First Amenment as
protecting speech that is indecent but not obscene. See Brown v. Ent. Merchs. Ass’n., 564 U.S.
786, 794 (2011) (“No doubt a State possesses legitimate power to protect children from harm,
but that does not include a free-floating power to restrict the ideas to which children may be
exposed.”) (citations and internal quotations omitted); F.C.C. v. Pacifica Found., 438 U.S. 726,

745–46 (1978) (“For it is a central tenet of the First Amendment that the government must
remain neutral in the marketplace of ideas.”). Because the AEA’s text targets such speech, the
Court finds it is a content-based regulation. The AEA draws distinctions based on the message a
speaker conveys: adult-oriented performances that are harmful to minors are sanctioned with a
criminal penalty while others are not.19 This fact alone does not make the AEA
unconstitutional—but it does make it a content-based regulation that may be possibly subject to
strict scrutiny review.
2. The AEA is a Viewpoint-based Regulation
The Court also finds that the AEA is not only a content-based regulation, but also
viewpoint based. Viewpoint-based regulations “raise[] the specter that the Government may

effectively drive certain ideas or viewpoints from the market place.” R.A.V., 505 U.S. at 387
(1992); see also Reed, 576 U.S. at 168 (“Government discrimination among viewpoints—or the
regulation of speech based on the ‘specific motivating ideology or the opinion or perspective of
the speaker’—is a ‘more blatant’ and ‘egregious form’ of content discrimination.”). The Parties’
briefs and arguments at trial focused on the AEA’s textual reference to “male or female
impersonators.” After all, Plaintiff is a theater organization with performers who are “male or
female impersonators.” (ECF No. 10.) And here, the AEA regulates the performer.

19 A content-based statute does not automatically merit strict scrutiny analysis. The purpose of
this section is just to determine whether the AEA is facially content-based and the Court
concludes that it is.
Plaintiff argues that identifying these performers—especially “male or female
impersonators”—necessarily makes the statute a viewpoint-based regulation because the
prohibited conduct “cannot be defined without referencing . . . the perspective of the speaker.”
(ECF No. 35 at 498–99.) Plaintiff claims that this formulation outlaws a “drag performer

wearing a crop top and mini skirt… but not a Tennessee Titans cheerleader.” (Id. at PageID
499.) Defendant disagrees, contending that the “reference to specific types of performers
clarifies the speech that is ‘harmful to minors’ without narrowing the covered speech.” (ECF
No. 58 at PageID 797 (emphasis in original).) Defendant points to the phrase “or similar
entertainers,” as a catchall that would in fact criminalize a cheerleader whose performance is
harmful to minors. (ECF No. 81 at PageID 1199.) And Defendant points out that the AEA’s
language was copied verbatim from current law that has been “on the books for many, many
decades.” (ECF No. 58 at PageID 782 (citing AEA’s legislative history); see also ECF No. 81 at
PageID 1205 ([Defense Counsel to the Court:] “I just want to reiterate that this language is
pulled directly from a statute that’s been on the books since 1995.”).

Defendant is correct that the AEA incorporated this language from existing state law. In
the adult entertainment context, the earliest appearance of the phrase “male or female
impersonators” known to this Court is from 1987. See The Adult-Oriented Establishment
Registration Act of 1987, 1987 Tenn. Pub. Acts 841, ch. 432, § 2. But pulling language from old
law that was passed in 1987 does not insulate the AEA’s language from this Court’s review of a
new law in 2023.
In short, the AEA uses the language in a different way. The “Adult-Oriented
Establishment Registration Act” (“AERA”), where this language first appeared, regulates adult-
oriented businesses that are zoned in fixed locations in Shelby County. Meanwhile, the AEA
regulates the performers themselves—implicating their First Amendment rights—in Section
2(B)’s textually-broad language of “[i]n a location where the adult cabaret entertainment could
be viewed by a person who is not an adult.”20 (“Location Provision”) (ECF No. 19-1 at PageID
93.) What this means is that the AERA and AEA share similar language but operate differently.

Even though the “male or female impersonator” language appears in both, it employs no
viewpoint-discrimination in the AERA context because it regulates the business owner—the
employer of the “male or female impersonator.” By contrast, the same language matters greatly
in the AEA, which regulates the “male or female impersonator.” Simply put, the AEA directly
impacts the performers’ First Amendment rights in a way that the AERA does not.
The Court finds this phrase problematic. First, while including “male or female
impersonators,” in a list with “topless dancers, go-go dancers, exotic dancers, strippers . . . or
similar entertainers” may have escaped many readers’ scrutiny in 1987, it may not do so with
ease in 2023. In 1987, homosexual intercourse was considered sodomy and was a crime in
Tennessee21, “Don’t Ask Don’t Tell” had not been enacted (much less repealed)22 for our
military, and same-sex couples did not have a recognized fundamental right to marry23. The

phrase “similar entertainers” seems to refer to dancers traditionally associated with “adult-
oriented businesses.” In 1987, associating “male or female impersonators” in that category may
have called for little or no concern. This Court views categorizing “male or female

20 The Court will discuss the Defendant’s “natural reading,” or in the alternative, request for a
narrowing construction later in this order.
21 See Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. 1996) (recognizing that the right to
privacy renders the state sodomy statute unconstitutional)
22 See Don't Ask, Don't Tell Repeal Act of 2010, 124 Stat. 3515 (repealing 10 U.S.C. § 654,
which required members of the Armed Forces to be separated for engaging in homosexual
conduct).
23 See Obergefell v. Hodges, 576 U.S. 644 (2015) (recognizing the Fourteenth Amendment
guarantees same-sex couples the right to marry).
impersonators” as “similar entertainers” in “adult-oriented businesses” with skepticism.
Regardless of the Tennessee General Assembly’s intentions, the AEA’s text criminalizes
performances that are “harmful to minors” by “male or female impersonators,” and the Court
must grapple with that text. The Court finds that this phrase discriminates against the viewpoint

of gender identity—particularly, those who wish to impersonate a gender that is different from
the one with which they are born. An illustration might be helpful.
Assume an individual, who identifies as male, holds a guitar and wears an “Elvis Presley”
costume that is revealing without being legally obscene, but indecent enough to be potentially
harmful to minors.24 If this individual “performs” by telling jokes in Elvis’ voice in “a location
where adult cabaret entertainment could be viewed by a person who is not an adult,” it is unclear
whether this person would violate the AEA.25 One could argue, as Defendant does, that the
individual would qualify as a “similar entertainer,” who belongs in the same category as “topless
dancers, go-go dancers, exotic dancers, strippers.” But is that necessarily so? The similar
entertainers’ common thread—aside from being traditionally associated with “adult-oriented

establishments”—is that they are all dancers of a sort. What if the Elvis impersonator does not
dance?26 Does this performance have any redeeming value to a five-year-old? It remains
unclear whether that performer would violate the AEA.
But if a person who identifies as a female wore the same Elvis costume and engaged in
the same performance, she would clearly be a male impersonator. The AEA is viewpoint

24 The Bluff City nods at one of its favorite sons, but the same principle applies to any other
character that “male or female impersonators” may wish to portray.
25 The AEA does not define “male or female impersonator.” Is a male individual who
impersonates a male character a male impersonator? Likewise, is a female who dresses up as a
female character a female impersonator?
discriminatory in that it will more likely punish the latter, but not the former, for wearing the
same constume and conducting the same performance.
Defendant disagrees. He argues that if the “list of covered performers included only
‘male or female impersonators,’ then an argument could be made that the State was using an

identity-based restriction.” (ECF No. 58 at PageID 797.) But the Court need not encounter a
law as clear as Defendant’s hypothetical statute to accept the soundness of its conclusion. The
Court need only ensure that the government not use a class of speech—like sexual speech that is
not obscene but potentially harmful to minors—as a “vehicle for content discrimination unrelated
to [its] distinctively proscribable content.” See R.A.V., 505 U.S. at 383–84. While Tennessee
has the power to protect children from harmful materials, it must do so without an “unnecessarily
broad suppression of speech addressed to adults.” Reno, 875 U.S. at 875. Given an appropriate
scope, it may regulate adult-oriented performers who are harmful to minors. But it cannot, in the
name of protecting children, use the AEA to target speakers for a reason that is unrelated to
protecting children. The Court finds that the AEA’s text targets the viewpoint of gender

identity—particularly those who wish to impersonate a gender that is different from the one with
which they are born. This text makes the AEA a content-based, viewpoint-based regulation on
speech.
B. Did the Government Pass the AEA Because of an Impermissible Purpose?
Should another court disagree and find that the AEA is a content-neutral regulation, the
Court presents this alternative and independent basis for its conclusion. The Supreme Court has
held that facially content-neutral laws will be considered content-based if “there is evidence that
an impermissible purpose or justification underpins” the law. Austin, 142 S. Ct. at 1475. Courts
considering this question have studied legislative history to see if there is “evidence of an
impermissible legislative motive” behind a challenged act. Reed, 576 U.S. at 166; Hill v.
Colorado, 530 U.S. 703 (2000) (relying on legislative history).
The Court is aware of the vagaries of using legislative history in interpreting statutory
text. See Exxon Mobil Corp. v. Allapattah Services, 545 U.S. 546, 568 (2005) (“[L]egislative

history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative
history has a tendency to become [an exercise in] ‘looking over a crowd and picking out your
friends.’”). But Supreme Court precedent and practice instruct this Court to look at the AEA’s
legislative history, especially in an action over a law with no enforcement history. See Reed, 576
U.S. at 166 (identifying cases that used legislative history in applying this test). The Parties
echoed this point at trial, and asked the Court to look at both the legislative history and text to
see whether Tennessee adopted the AEA for an impermissible purpose. (ECF No. 81 at PageID
1225–26). The Court, with reluctance, turns to its mandated task of examining the AEA’s
legislative history.
1. Impermissible Purpose from the AEA’s Legislative History

The Court incorporates its summary of the AEA’s legislative history from this order (See
supra pp. 8–12.) The Court will analyze the AEA’s text, and look at both text and history
together to determine whether the Tennessee General Assembly passed the bill for an
impermissible purpose. As the Court observed above, the legislative history strongly suggests
that the AEA was passed for an impermissible purpose. (Id. at 12.)
2. Impermissible Purpose of the AEA’s Text
The Parties remind the Court that the AEA’s text is the “best indicator of intent.” Nixon
v. United States, 506 U.S. 224, 232 (1993); But see Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 397 (2012) (describing the idea of a statute’s plain
language being the best evidence of legislative intent as a “false notion”). For the same reasons
that the Court found that the AEA is a viewpoint-based restriction on speech, the Court also finds
that the text of the AEA, while inconclusive on its own, favors a conclusion that it was passed for
an impermissible purpose.

The Court reached this conclusion for three main reasons. First, as already discussed, the
AEA’s text is a viewpoint-based discrimination against those who wish to impersonate a gender
that is different from the one with which they are born. While not dispositive, this fact is
evidence that the Tennessee General Assembly carelessly, if not intentionally, passed the AEA
for the inappropriate purpose of chilling constitutionally-protected speech. More importantly,
the AEA remarkably departs from the AERA because it regulates not the operator of the adult-
oriented business but the performer herself. (ECF No. 19-1 at PageID 93 (showing that the AEA
amends Tenn. Code Ann. § 7-51-1401 to this effect); see also ECF No. 35-1 at PageID 519
(“There is a first offense violation that’s in the bill before you now and it would be applied to the
performer[.].)

Second, the AEA’s lack of a textual scienter requirement troubles the Court for a statute
that regulates speech with criminal sanctions. Several cases in which the Supreme Court upheld
a restriction on speech contained a textual scienter requirement of “knowing.” See e.g. New York
v. Ferber, 458 U.S. 747 (1982); Ginsberg v. New York, 390 U.S. 629 (1968); Miller, 413 U.S. at
15. One of these cases is Miller, which Representative Bulso cited as a basis for the AEA’s
language on its “harmful to minors” standard. (ECF No. 35-1 at PageID 605 (citing 413 U.S.
15).) Having drawn language from a case analyzing a statute with a textual scienter requirement
but not including that provision in the AEA can be evidence that the legislature passed the law to
chill constitutionally-protected speech by lowering the requisite mens rea in the AEA to
criminalize more conduct.
Third, the combination of the AEA’s breadth and lack of affirmative defenses trouble the
Court. The AEA criminalizes speech on “public property, or [i]n a location where the adult

cabaret entertainment could be viewed by a person who is not an adult.” (ECF No. 19-1 at
PageID 93.) The Court will address Defendant’s argument as to what he considers the purported
natural reading of this language. Suffice to say for now that the Court’s natural reading of the
text suggests that this language is extremely broad: a child could be present in several locations
around Shelby County. Without an accompanying affirmative defense, as Senator Yarboro
warned, this could indicate that the AEA’s text criminalizes “adult cabaret entertainment”
virtually anywhere.
3. The Legislative History and the AEA’s Text Indicate an
Impermissible Purpose

Viewed together, the AEA’s text and legislative history point this Court to the conclusion
that the Tennessee General Assembly passed the AEA for an impermissible purpose. The Court
finds that the AEA’s text discriminates against a certain viewpoint, imposes criminal sanctions,
and spans a virtually unlimited geographical area. As a criminal statute that regulates the
performers, the AEA offers neither a textual scienter requirement nor affirmative defenses. For
these reasons, the AEA can criminalize—or at a minimum chill—the expressive conduct of those
who wish to impersonate a gender that is different from the one with which they were born in
Shelby County. Such speech is protected by the First Amendment.
The Court now turns to the AEA’s legislative history. Simply put, the Tennessee General
Assembly enacted the AEA—a statute regulating speech with criminal sanctions—in a way that
is purposefully overbroad such that it can chill speech that may be constitutionally-protected.
The Court reaches this conclusion for four main reasons.
First, the legislative history supports the Court’s observation that the AEA materially
changes the regulatory scheme in adult-oriented businesses. While the AERA imposed penalties

on operators hosting adult-oriented entertainment when minors were present, the AEA criminally
sanctions the performers themselves. Senator Johnson, the Senate sponsor, made this exact
observation when he introduced the AEA. This significant shift that AEA introduces to the
punitive structure—making performers criminally liable for potential underage viewing of their
performances—suggests the bill’s impermissible purpose. The bill criminalizes, or at least
chills, the expression of a class of performers, rather than the business operators, or even parents,
who facilitate the exposure of adult cabaret entertainment to minors.
Second, the legislative history lends credence to the Court’s conclusion that the AEA
facially discriminates against a particular viewpoint. Arguing that the AEA is an attempt create
adult-only zones, Defendant noted that there are nine references in the legislative history to “age

restricted venues.” (ECF No. 82 at PageID 1258.) But that logic cuts both ways. A closer look
at the transcript, which is only 100 pages long, reveals at least twenty-nine references to “drag,”
and eleven references to “male and/or female impersonators” which is part of the AEA’s text.
From this, the Court concludes that the legislature had a robust debate on the statutory text of
“male or female impersonator.” Despite repeated objections from fellow legislators about the
language and purpose of the AEA and the broad sweep of the act, the legislative history shows
that the legislature knew what they were doing and deliberately chose to retain those words in the
statute. So, those words are there because the legislature intended to keep them there.
The word “drag” never appears in the text of the AEA. But the Court cannot escape that
“drag” was the one common thread in all three specific examples of conduct that was considered
“harmful to minors,” in the legislative transcript. Ms. Starbuck, the sole witness who spoke in
favor of the AEA, mentioned “Boro Pride” as the specific example of a performance that is

harmful to minors. (ECF No. 35-1 at PageID 530.) Representative Zachary spoke about a “drag
show” in Knox County as an example of a performance that he thinks the AEA would protect
children from. (Id. at PageID 602.) Finally, Representative Todd, the AEA’s House sponsor,
identified a “drag show” as an instance of adult cabaret entertainment. (Id. at PageID 584.)
Defendant reminds the Court that the “remarks of a single legislator, even the sponsor,
are not controlling in analyzing legislative history.” (ECF No. 58 at 799 (citing Chrysler Corp.
v. Brown, 441 U.S. 281, 311 (1979)).) While not controlling, as the co-sponsor, Representative
Todd’s remarks are persuasive to the Court. There is no question that the legislative history
includes statements of legislators expressing their desire to protect minors from sexually explicit
performances.27 Yet when Representative Todd explained why he was “asked to come up with

legislation” that led to the AEA, he recounted the events behind a “drag show” in Jackson—in
doing so, not once did he mention any overly sexual content that affects children. (ECF no. 35-1
at PageID 584–85.) He only referred to a “drag show” that was listed as “family-friendly.” (Id.)
He had not yet seen the performance and therefore could not have made a sound determination
about the show’s sexual impropriety for minors. His statement as House sponsor of the bill
suggests that the AEA was not proposed to empower the state to protect minors from actual

27 For the Tennessee General Assembly’s consuming concern over the health of their children
through the AEA, in defending the AEA, the Tennessee Attorney General’s Office asked the
Court to apply a narrowing construction to the “harmful to minors” standard by ruling that
“minors” meant “a reasonable 17-year-old.” (ECF No. 81 at PageID 1136 (citing Davis-Kidd
Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 528 (Tenn. 1993).)
instances of indecent “adult cabaret entertainment,” but rather that the AEA is geared towards
placing prospective blocks on drag shows—regardless of their potential harm to minors.
Third, this criminal statute contains neither a textual scienter requirement nor affirmative
defenses. Nothing in the legislative history indicated the legislators even contemplated adding

these narrowing mechanisms to their statute that criminalized forms of expressive speech. But
unlike the Miller test—which was discussed during deliberations and contained a textual
“knowing” scienter requirement—the AEA has no textual scienter requirement.
Representative Todd asserted that attorneys reviewed the AEA and were very confident
that it will be upheld in Court. Nowhere was Davis-Kidd discussed in the AEA’s legislative
history—a case of great importance to the AEA. Defendant cites Davis-Kidd as a case that is
important to this Court’s assessment of the AEA’s constitutionality in that it may save the AEA
from vagueness by cabining the “harmful to minors” standard, and narrowing the AEA’s scope
by adding a non-textual scienter requirement of “knowing.” 866 S.W.2d at 528. Davis-Kidd
contains an affirmative defense for parental consent as well. Id. at 535. It even contains

language that explicitly attempts to create the “adult-only” zones that Defendant ascribe to the
AEA. Id. at 535. These facts indicate to the Court that the legislature did not bother reducing—
or even contemplate reducing—the potency of their speech restriction.
Fourth, the Court finds that the AEA regulates an area that is of an alarming breadth.
Representative Yarboro pointed out that the Location Provision in the AEA effectively meant
that it applied to anywhere in the world—anywhere a child could view it means anywhere.
Defendant pointed out at trial that the legislature “specifically referenced age-restricted venues”
in the legislative history. (ECF No. 82 at PageID 1258.) But as Defendant raises in his brief,
text is the best indicator of intent. And the AEA’s text makes no mention of age-restricted
venues. To the contrary, the AEA’s Location Provision is exceptionally broad. Plaintiff could
build a card-checking fortress around its theatre and a child could still be present. Compare this
language to the one in Davis-Kidd: “It is unlawful for a person to display . . . [adult material]
which contains material harmful to minors anywhere minors are lawfully admitted.” 866 S.W.2d

at 535 (emphasis added).
Remember the Supreme Court requires that restrictions on First Amendment Rights
“must be narrowly drawn and represent a considered legislative judgment that a particular mode
of expression has to give way to other compelling needs of society.” Broadrick, 413 U.S. at
611–12. But here the AEA’s text is not narrowly drawn and the legislative history does not
demonstrate a considered legislative judgment. For all these reasons, the Court makes the factual
finding that the text and history of the AEA point to a conclusion that the AEA was enacted for
an impermissible purpose.
C. Does the “Secondary Effects” Doctrine Apply Here?
Under the “secondary effects” doctrine, courts must apply intermediate—not strict

scrutiny—to a content-based law designed to combat the undesirable secondary effects of the
regulated speech. See Richland Bookmart, Inc. v. Nichols, 137 F.3d 435, 440 (6th Cir. 1998)
(“Accordingly, the Court in City of Renton, like the Court in American Mini Theatres, decided
that the zoning ordinances at issue could be reviewed under the standard applicable to content-
neutral regulations, even though the ordinances were plainly content-based.). The doctrine’s
definitive case is Renton v. Playtime Theatres, Inc., in which the Supreme Court applied
intermediate scrutiny in upholding a zoning ordinance that excluded adult-oriented theatres
within 1,000 feet of any residential zone, church, park, or school. 475 U.S. 41, 46 (1986).
Despite the law’s content-based regulation of adult-oriented theatres, the Supreme Court in
Renton treated the law as if it were content-neutral because the zoning ordinance “is aimed not at
the content of the films shown at ‘adult motion picture theaters,’ but rather at the secondary
effects of such theaters on the surrounding community.” Id. at 47. The Supreme Court based its
conclusion on the district court’s finding that “the City Council’s predominate concerns were

there secondary effects of adult theaters, not with the content of the adult films themselves.”
(Id.)
Defendant claims the secondary effects doctrine applies here because “by protecting
children from obscene content, the Act inherently addresses the secondary effects associated
with exposure to such content—namely, an increase in ‘sexual exploitation crimes.’” (ECF No.
58 at PageID 796.) Defendant cites the Senate session testimony of Ms. Starbuck, an “advocate
for children harmed by sexualization and exploitation,” who remarked that “normalizing the
sexualization of children empowers child predators and increases the demand to exploit and
sexually abuse children.” (Id.) And so Defendant asks the Court to apply Renton in upholding
the AEA because the Tennessee General Assembly’s predominate concerns were not the adult

cabaret entertainment performers’ expressive conduct, but the “increase in sexual exploitation”
they bring. (ECF No. 65 at PageID 939.)
The Court finds the secondary effects doctrine does not apply in this case. In Renton, the
Supreme Court affirmed the district court’s finding that the legislature’s “predominate concerns”
were not the adult theaters themselves but the secondary effects of adult theaters on the
surrounding community. 475 U.S. at 47–48. This was because the legislature designed the
zoning ordinance “to prevent crime, protect the city’s retail trade, maintain property value, and
generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial
districts, and the quality of urban life,’ not to suppress the expression of unpopular views.” Id.
This District Court does not find that the Tennessee General Assembly’s predominate
concerns were “increase in sexual exploitation.” Rather, the Corut finds that their predominate
concerns involved the suppression of unpopular views of those who wish to impersonate a
gender that is different from the one with which they were born. Defendant’s identification of

“increase in sexual exploitation” as the legislature’s predominate concern in passing the AEA
draws not from legislators, but from Ms. Starbuck’s testimony. (ECF No. 58 at PageID 796)
(citing ECF No. 35-1 at PageID 528 (“It’s no wonder we have skyrocketing mental health crisis
amongst our confused and vulnerable youth with more sexual exploitation crimes reported than
ever before.”). The only other time “sexual exploitation” was mentioned in the legislative
transcript was in Ms. Starbuck’s testimony. (Id. at PageID 32 (“[Children] are seeing adults clap
every time an article of clothing is removed, the adults are thunderously clapping. And so they
are making associations that when you take your clothes off, you’re rewarded money . . . But
continuing that behavior is sending that message to children and it[’]s normalizing that sexual
exploitation.”).) On the other hand, the record is replete with references to the expressive

conduct of “male or female impersonators,” “drag shows,” “Pride” events, and more. The
Court’s determination that the AEA was enacted for an impermissible purpose is broad enough
to reject the notion that the AEA is aimed not at the content of expressive speech but rather at its
secondary effects.
The Court is sympathetic to the legislature’s concerns about the harms from the increased
sexualization of children. There is no question that Tennessee has a compelling government
interest in protecting the physical and psychological well-being of minors. But Supreme Court
precedent precludes Defendant from invoking the “secondary effects” doctrine to protect
children from speech that is harmful to minors on the basis that the speech could make them
susceptible to sexual predation. See also Reno v. ACLU, 521 U.S. 844, 867–68 (1997) (declining
to apply the secondary effects doctrine where the purpose of the statute is to “protect children
from the primary effects of ‘incident’ and ‘patently offensive’ speech rather than any ‘secondary
effect’ of such speech”).

But even if the Court grants Defendant that the “increase in sexual exploitation crimes,”
is a valid secondary effect, the Court concludes that Renton’s holding does not control in this
case because of one key difference: Renton is a zoning ordinance and the AEA is not. In other
words, prohibiting adult-oriented businesses from locating within 1,000 feet of establishments is
not the same as invoking criminal penalties against performers of “adult cabaret entertainment”
in “public property” or in “any location where the adult cabaret entertainment could be viewed
by a person who is not an adult.”
At trial, Defendant argued that the AEA is “less restrictive” than the zoning law in
Renton because performers “literally can [perform] at any place, any venue, so long as they’re
carded at the door.” (ECF No. 81 at PageID 1197.) This argument relies on Defendant’s reading

of the AEA’s Location Provision really means prohibiting such performances except
“[a]nywhere people are carded at the door.” (ECF No. 81 at PageID 1191–92 (“We think
clearly what the legislature was saying to that language is, we want this to be carded, just like
bars where alcohol is sold[.]”).) Defendant offered another way to understand his position after
trial: Section 2(c)(1)(B) “should be read to apply ‘[i]n a location where the adult cabaret
entertainment could [permissibly] be viewed by a person who is not an adult.’” (ECF No. 85 at
PageID 1329.)
The Court rejects Defendant’s reading of the statute because it is completely unmoored
from the text. Nowhere does the word “card” or “identification” appear in the AEA nor does it
strongly suggest some sort of “carding” mechanism that would create specific “adult-only
zones.” A dictionary definition of the word “could” is the past tense of the word “can,” which is
an auxiliary verb that means “be physically or mentally able to” or “used to indicate possibility.”
Can, The Merriam-Webster Dictionary (rev. ed. 2022). This definition, which lends itself to a

plain meaning, is consistent with Plaintiff’s position that the word “could,” means “is possible.”
(See also ECF 39-2 at PageID 689.) Yet Defendant insists that the Court should add the word
“permissibly” to modify “could” as a proper way to understand the statute under various canons
of construction. The Court refuses to engage in such rewriting of the statute.
Still, the Court hesitantly accepts Defendant’s invitation to look into the AEA’s
legislative history to read the legislature’s intent into the statute. As the Court’s discussion on
that issue showed, the legislative transcript includes references to age-restricted zones in
discussions led by the Senate Sponsor and House Sponsor. Yet the legislators passed a statute
that mentioned nothing of the sort. Worse still, a legislator warned the sponsors of the AEA’s
overbreadth by prohibiting adult cabaret entertainment “anywhere a child could view a

performance.” (See e.g. ECF No. 58 [Defendant’s Trial Brief] at PageID 783 (“The legislature
sought to ‘apply the same standards’ from existing law to locations where children could be
present.”) And another legislator warned them the law is both vague and overbroad such that it
“[would] not stand up in court.” (ECF No. 35-1 at PageID 601.) Neither sponsor responded to
these concerns—Representative Todd rather expressed his confidence in Defense counsel’s
ability to defend the AEA in court—and the Tennessee General Assembly passed the AEA in
this current form.
At bottom, the Court refuses to adopt Defendant’s atextual reading of the AEA28 to
effectuate the legislature’s purported intent. To do so would depart from the Court’s limited role
in interpreting the law. Further, the legislative history compels this conclusion. It shows that the
proposed language was expressly discussed yet eventually discarded by the legislature.

Therefore, the AEA is unlike Renton’s zoning ordinance and its holding does not control here.
II. Strict Scrutiny
The discussion above leads to one conclusion: the Court must apply strict scrutiny to the
AEA. This means that the AEA is “presumptively unconstitutional.” See Reed, 576 U.S. at 163
(“Content-based laws—those that target speech based on communicative content—are
presumptively unconstitutional[.]”). The burden is therefore on Defendant to prove that the AEA
is “narrowly tailored to serve compelling state interests.” Id. (quoting R.A.V., 505 U.S. at 395);
see also Ashcroft v. ACLU, 542 U.S. 656, 665 (2004) (“When plaintiffs challenge a content-
based speech restriction, the burden is on the Government to prove that the proposed alternatives
will not be as effective as the challenged statute.”). In the end, the Court inquires “whether the

challenged regulation is the least restrictive means among available, effective alternatives.”
Ashcroft, 542 U.S. at 666.

28 Defendant argues that his construction is the best reading of the statute but in the alternative,
asks this Court to invoke the constitutional avoidance canon. (ECF No. 81 at PageID 1161,
1287.) This canon suggests that a court reading statutory language susceptible of multiple
interpretations may adopt a construction that avoids serious constitutional issues. Jennings v.
Rodriguez, 138 S.Ct. 830, 836 (2018). The Supreme Court has held that First Amendment law
mandates that if a statute is “‘readily susceptible’ to a narrowing construction that would make
it constitutional, it will be upheld.” Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397
(1988). But The Supreme Court’s command came with a clear caveat: “We will not rewrite a
state law to conform it to constitutional requirements.” Id.; Jennings, 138 S.Ct. at 836 (“But a
court relying on [constitutional avoidance] still must interpret the statute, not rewrite it.”).
A. Does Tennessee Have a Compelling State Interest?
There is no question that Tennessee has a compelling state interest in “protecting the
physical and psychological well-being of minors, which extended to shielding them from
indecent messages that are not obscene by adult standards.” Reno, 521 U.S. at 879 (citing Sable

Comm. of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (internal quotation marks omitted). The
Parties do not dispute this issue.
B. Is the AEA Narrowly Tailored?
The Court finds the AEA is not narrowly tailored to achieve Tennessee’s compelling
state interests. In cases where a legislative act restricts indecent speech, which is not obscene to
adults, the Supreme Court has been clear that those circumstances must be “relatively narrow
and well-defined[.]” Erznoznik, 422 U.S. at 212; see also Brown v. Ent. Merchs. Ass’n, 564 U.S.
786, 794 (2011) (“No doubt a State possesses legitimate power to protect children from harm,
but that does not include a free-floating power to restrict the ideas to which children may be
exposed.”). The Court concludes that the AEA is neither relatively narrow nor well-defined.

Defendant’s position in this case has always been that strict scrutiny does not apply to the
AEA. And to the extent that it does, Defendant thinks “the statute is the least restrictive means,
because it opens every single venue that does not have an age restriction imposed.” (ECF No. 82
at PageID 1265.) The Court has already explained its refusal to adopt Defendant’s reading of
AEA’s Location Provision in Section 2(c)(1)(B) as creating zones for adult cabaret entertainment
“anywhere that imposes an age restriction.” The plain reading of Section 2(c)(1)(B) is that the
AEA criminally sanctions qualifying performers virtually anywhere—this includes private
events at people’s homes or arguably even age-restricted venues.
This restriction on the First Amendment rights of Shelby County residents is not only
alarmingly overbroad, the AEA contains no textual scienter requirement and no affirmative
defenses. See Smith v. California, 361 U.S. 147, 219–20 (1959) (striking down a law that did not
contain a scienter requirement because of its chilling effect on speech). This includes the

affirmative defense of parental consent, which reflects the “consistently recognized
[constitutional principle] that the parents’ claim to authority in their own household to direct the
rearing of their children is a basic in the structure of society.” Ginsberg, 390 U.S. at 639.
Parental consent has been critical to the constitutionality of similar laws that restrict speech that
is indecent but not obscene to adults. See id.; Davis-Kidd v. McWherter, 866 S.W.2d 520, 528
(Tenn. 1993) (upholding obscenity law that contained a parental consent affirmative defense).
Still, Defendant insists that “the state’s interest in protecting children is independent of
the parents.” (ECF No. 82 at PageID 1273.) This bold assertion may collide with the Supreme
Court’s holding in Ginsberg. But even if it did not, this argument conflicts with the notion that
the AEA is narrowly-tailored to achieve the state’s interest. As discussed above, the AEA

changes Tennessee’s punitive scheme in that it criminalizes not the business operator but the
performer. The AEA inflicts no punishment to the parent who brings their minor child to view
adult cabaret entertainment. If the AEA was truly designed to advance “the state’s interest in
protecting children independent of the parents,” then its punitive scheme belies that design.
Defendant asserted that the legislative record shows that the legislature “attempted to find
the least restrictive means [] and that is exactly what they did . . . [the legislature] limited [adult
cabaret performance] to venues where children could not be present, and their interest here is
protecting children. . . that is the best evidence of least restrictive means.” (ECF No. 82 at
PageID 1265–66.) Defendant also alerted the Court that Plaintiff “has not identified a single less
restrictive means,” and so he had no “opportunity to put any evidence on [about] any less
restrictive means, because no less restrictive means was ever identified.” (ECF No. 82 at PageID
1266.)
But from the very beginning of this suit, Plaintiff has raised the issues this Court just

discussed about the AEA’s lack of affirmative defenses, silence on a scienter requirement, novel
punitive scheme, and overbroad geographical scope. (ECF No. 10 at PageID 59–60.) Instead of
substantially addressing these concerns, Defendant focused his theory of the case on why the
Court should adopt his reading of the AEA. The Court rejects that theory, and finds that
Defendant has not met his burden of proving the AEA is the least restrictive means to achieve
Tennessee’s legitimate compelling interest in protecting minors.29 Defendant’s argument fails
and the Court finds that the AEA is not narrowly tailored to serve its legitimate compelling
interest.
III. Vagueness
The vagueness doctrine arises not from the First Amendment but from the “Due Process

[of Law] Clause of the Fifth Amendment.” United States v. Williams, 553 U.S. 285, 304 (2008).
A law is unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.” Id. (citing Hill v. Colorado¸530 U.S. 703, 732 (2000) and
Grayned v. Rockford, 408 U.S. 104, 108–09 (1972)). While “perfect clarity and precise
guidance” have never been required of free speech restrictions, a plaintiff challenging a law for
overbreadth—as in this case—can “complain of the vagueness of the law as applied to the

29 At trial, Defendant conceded that if the Court were to apply strict scrutiny and reject his
reading or narrowing-constructions, the AEA fails strict scrutiny. (ECF No. 82 at PageID 1276–
77.)
conduct of others[.]” Id. (citations omitted). The Sixth Circuit has held that the “strictness of
our vagueness scrutiny is proportionate to the burden that the law imposes on those whom it
regulates.” Libertarian Party of Ohio v. Husted, 751 F.3d 403, 422 (6th Cir. 2014). And when it
comes to restriction on speech, “rigorous adherence to [the fair notice] requirements is necessary

to ensure that ambiguity does not chill protected speech. Id.
Plaintiff’s position on its vagueness argument shifted during litigation, and found its
home in the AEA’s reference to Tennessee Code Annotated § 39-17-901. (ECF No. 62 at
PageID 878–79.) Stated simply, Plaintiff argues that the “harmful to minors” standard
incorporated in the AEA is unconstitutionally vague in that it can apply to minors from age five
to seventeen years. (Id.) Because “‘contemporary community standards’ are not the same for a
five-year-old and a seventeen-year-old,” Plaintiff argues that what is “harmful to minors” could
chill performers faced with great uncertainty as they run the risk of violating a criminal statute
with their speech. (Id. at PageID 879.) Asked at trial whether she thinks Plaintiff’s
performances are “appropriate for children of any age,” Ms. Rodley testified that she does not

know if she would bring a five-year-old to a show, but definitely a “15-, 16-year-old, 17-year-
old.” (ECF No. 81 at PageID 1114.) Ms. Rodley offered uncontroverted testimony that Plaintiff
considers some content, which may be appropriate for an older teenager, may not be appropriate
for a younger child. (Id.)
Clarit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10441382. Public record. Not legal advice.